United States v. Worku
800 F.3d 1195
| 10th Cir. | 2015Background
- Defendant Kefelegne Alemu Worku, an Ethiopian, assumed the identity of Habteab Berhe Temanu, obtained immigration benefits, and later became a U.S. citizen. Immigration authorities discovered the false identity and suspected Worku of torturing Ethiopian prisoners in the 1970s.
- Worku was convicted of (1) unlawful procurement of citizenship/naturalization (18 U.S.C. § 1425), (2) fraud and misuse of immigration documents (18 U.S.C. § 1546), and (3) aggravated identity theft (18 U.S.C. § 1028A). He was sentenced to 22 years, above the Guidelines range.
- On appeal Worku raised four principal challenges: Double Jeopardy as to Counts 1 and 3; that he had lawful authority to use Berhe’s identity; procedural error at sentencing (insufficient evidence he immigrated to conceal human-rights violations and that identifications were tainted by suggestive photo arrays); and substantive unreasonableness of the long sentence.
- The court applied plain-error review to his first-time appellate challenges to convictions and abuse-of-discretion / clear-error standards to sentencing challenges; it upheld the convictions and the sentence.
- The court held (a) even if Counts 1 and 3 overlapped, overwhelming and essentially uncontroverted evidence of guilt defeats plain-error relief on Double Jeopardy; (b) permission from Berhe’s children did not constitute “lawful authority” under § 1028A because there was no evidence the identity-owner consented; (c) photo-array identifications were not impermissibly suggestive and were reliable under the totality of circumstances despite the 30+ year gap; and (d) the district court’s significant upward variance from the Guidelines was not arbitrary or capricious given the defendant’s human-rights conduct and deception.
Issues
| Issue | Worku's Argument | Government's Argument | Held |
|---|---|---|---|
| Double Jeopardy re Counts 1 (§1425) and 3 (§1546) | Counts punished same conduct (lies on N-400) and one is lesser-included | Counts concerned different documents (N-400 vs I-485); even if overlap, evidence of separate lies was overwhelming | Affirmed: plain-error prong 4 fails — guilt was overwhelming and uncontroverted |
| Lawful authority for §1028A aggravated identity theft | He had permission from Berhe’s children to use Berhe’s identity, so use was with "lawful authority" | Consent by third parties (children) is not consent by the identity owner; no authority supports that as "lawful" under §1028A | Affirmed: no obvious error; §1028A requires victim’s consent (no evidence of such) |
| Procedural reasonableness — immigrated to conceal human-rights violations | Record does not support finding he came to U.S. to avoid punishment; alternative innocent inferences exist | Jury findings of persecution, defendant’s admissions (fear of kidnapping), broker payment facts support inference of concealment | Affirmed: district court’s finding not clearly erroneous; plausible inference of concealment |
| Procedural reasonableness — due process of photo-array IDs | Arrays were unduly suggestive (lighting, facial hair, clothing, composite presentation, lack of admonitions) causing unreliable IDs | Arrays not impermissibly suggestive; even if suggestive, Neil v. Biggers factors show reliable IDs (opportunity, attention, certainty, etc.) | Affirmed: arrays not impermissibly suggestive; identifications reliable under totality of circumstances |
| Substantive reasonableness of sentence | 22-year term is excessive and inconsistent with the Sentencing Guidelines | District court considered §3553(a) factors, horrific human-rights violations and deceit justify significant upward variance | Affirmed: variance not arbitrary or capricious; within district court discretion |
Key Cases Cited
- United States v. Burns, 775 F.3d 1221 (10th Cir. 2014) (plain-error standard for challenges raised first on appeal)
- United States v. Edeza, 359 F.3d 1246 (10th Cir. 2004) (overwhelming, uncontroverted evidence defeats plain error as to substantive elements)
- United States v. Goode, 483 F.3d 676 (10th Cir. 2007) (jury-instruction error may be cured by narrowing instruction at trial)
- United States v. Sinks, 473 F.3d 1315 (10th Cir. 2007) (similar-case application of fourth plain-error prong where overlapping counts involved an uncontroverted element)
- Grubbs v. Hannigan, 982 F.2d 1483 (10th Cir. 1993) (two-step test for impermissibly suggestive pretrial identification procedures)
- Neil v. Biggers, 409 U.S. 188 (1972) (five-factor reliability test for identification admissibility)
- United States v. Sanchez, 24 F.3d 1259 (10th Cir. 1994) (factors for evaluating suggestiveness of photo arrays)
- United States v. Kamahele, 748 F.3d 984 (10th Cir. 2014) (review of photo-array irregularities and clear-error standard)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion review of sentencing reasonableness and deference to district court’s §3553(a) balancing)
- Pepper v. United States, 562 U.S. 476 (2011) (district court may vary from Guidelines for principled reasons)