UNITED STATES OF AMERICA v. MOHAMMED JABATEH a/k/a Jungle Jabbah Mohammed Jabateh, Appellant
No. 18-1981
United States Court of Appeals for the Third Circuit
Argued January 21, 2020; Filed September 8, 2020
Before: AMBRO, MATEY, FUENTES, Circuit Judges.
PRECEDENTIAL
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 18-1981
UNITED STATES OF AMERICA v. MOHAMMED JABATEH a/k/a Jungle Jabbah Mohammed Jabateh, Appellant
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cr-00088-001) District Judge: Hon. Paul S. Diamond
Argued January 21, 2020
Before: AMBRO, MATEY, FUENTES, Circuit Judges.
(Filed: September 8, 2020)
Peter Goldberger (Argued)
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
William M. McSwain
Nelson S.T. Thayer, Jr.
Linwood C. Wright, Jr.
Robert A. Zauzmer (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
MATEY, Circuit Judge.
Mohammed Jabateh served as a rebel commander during the Liberian civil war. When his faction lost power, he fled to the United States seeking asylum and permanent residency. His conduct in Liberia, characterized by brazen violence and wanton atrocities, made an honest immigration application impossible. So he repeatedly lied to United States immigration officials, concealing his crimes and portraying himself as a persecuted victim. Jabateh‘s ruse succeeded for almost twenty years until a jury convicted him of immigration fraud and perjury. Now, Jabateh challenges his conviction and his sentence. His arguments about the quantity and quality of evidence presented at trial are wrong, with plentiful facts supporting the jury‘s findings. And his claims of sentencing error ignore the
Jabateh also argues, for the first time, that the Government improperly charged him with making false oral statements during an interview with an immigration officer in violation of
But while Jabateh is right, his failure to raise this argument at trial significantly alters the scope of our review. Given the novelty of the interpretative question, and the lack of persuasive, let alone authoritative, guidance, we cannot conclude that our reading of
I. BACKGROUND
We recount only the relevant history, reviewing the record evidence in the light most favorable to the prosecution, as we must in an appeal challenging the sufficiency of the evidence. United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc).
A. Jabateh and the Liberian Civil War
Civil war brought brutal violence to Liberia. In 1989, Charles Taylor‘s rebel group, the National Patriotic Front of Liberia (NPFL), invaded Liberia to overthrow Liberia‘s president, Samuel Doe. The violence fractured not only Liberia but the rebels themselves. NPFL soon split into two factions: the NPFL led by Taylor, and the Independent National Patriotic Front of Liberia (INPFL) led by Prince Johnson.1 In 1990, Johnson captured and executed President Doe, triggering even more violence.2 New rebel factions entered the fray to oppose the NPFL, including the United Liberation Movement of Liberia (ULIMO), founded by ethnic Mandingos and Krahns, groups targeted by the NPFL.3 Tensions within ULIMO eventually swelled, causing a split along ethno-religious lines into new warring factions. Islamic Mandingo fighters followed Alhaji Kromah, a member of former President Doe‘s cabinet, to form ULIMO-K (for
Kromah), while Christian Krahn fighters joined Roosevelt Johnson to form ULIMO-J (for Johnson).4
One of Kromah‘s ULIMO commanders was Mohammed Jabateh, who fought under the nom de guerre “General Jungle Jabbah” or “Jungle Jabbah.”5 During the
1. Torture
Jabateh and fighters acting under his direction routinely tortured and murdered their adversaries, real or assumed. Operating from a territory dubbed “Zero Guard Post,”6 Jabateh‘s militia arrested and then executed anyone suspected of “reconnaissance.” (App. at 677.) Their bodies were then simply “throw[n] . . . into the river.” (App. at 678.) Others were less fortunate, suffering torture before death. A favorite practice of Jabateh‘s troops involved “tabay,” binding a prisoner‘s arms behind the back tight enough to constrict breathing. In one instance, Jabateh ordered a child soldier to
place tires around two prisoners’ necks, douse the tires in gasoline, and set them on fire. As the prisoners screamed in agony, Jabateh‘s fighters shot them, then left their bodies to burn to ashes.
In another instance, Janghai Barclay testified that she fled her home to escape fighting between ULIMO and NPFL, only to endure capture by Jabateh‘s men. When Jabateh arrived to inspect the prisoners, Ms. Barclay watched Jabateh declare a captured young man a spy and order him executed. Jabateh‘s soldiers tied the man to a tree and slit his throat. Jabateh then told his soldiers that they could “take” the women for themselves and “[w]hen they refuse you can kill them.” (App. at 1040.) The soldiers then raped Ms. Barclay, who was eight months pregnant, causing her to suffer a miscarriage.
Or take Hawa Gonoie. She recounted that she was just thirteen when Jabateh and his fighters came to her village. After Jabateh‘s forces captured her family, she witnessed Jabateh give the order to kill a suspected spy, remove his heart, and feed the organ to Jabateh and his fighters. Conscription into ULIMO-K awaited the men, while Jabateh ordered his soldiers to “have” the women. (App. at 408.) Jabateh “assigned” Ms. Gonoie to an adult soldier who raped her for the next month and a half. (App. at 412.)
2. Persecution
The violence rolled on. After ULIMO split along tribal lines, Jabateh and his ULIMO-K fighters targeted, tortured, and killed members of the Krahn tribe. Around this time, ULIMO-K troops attacked a village where Martha Togba lived with her sister Tina. During the attack, troops targeted Tina because she was the girlfriend of a ULIMO-J commander.
Jabateh dragged a pregnant Tina from her home by her hair, bleeding from a gunshot wound and half naked, into the street. Jabateh beat and stabbed Tina while he interrogated her about her boyfriend‘s location. When Tina insisted that she did not know, Jabateh inserted his gun into Tina‘s vagina and fired, killing her. Jabateh then ordered a child soldier to guard Tina‘s body as it lay in the street to ensure that no one moved her until her body rotted.
3. Retribution
Jabateh quelled opposition with bone-chilling cruelty. When residents of one
The record goes on and on, but we will not. It is enough to say without exaggeration that the atrocities documented at trial, and found by a jury, paint a portrait of a madman.
B. Jabateh Seeks Asylum
But though mad, Jabateh was no fool. So when the civil war ended with Taylor and the NPFL victorious, and a possible reckoning for his crimes loomed, Jabateh left Liberia and applied for asylum in the United States. As part of the application, Jabateh filed Form I-589 (“Asylum Application“)
with the United States Immigration and Naturalization Service. One question on the Asylum Application asked:
Have you or any member of your family ever belonged to or been associated with any organizations or groups in your home country, such as, but not limited to, a political party, student group, labor union, religious organization, military or paramilitary group, civil patrol, guerrilla organization, ethnic group, human rights group, or the press or media?
If yes, provide a detailed explanation of your or your relatives’ involvement with each group and include the name of each organization or group; the dates of membership or affiliation; the purpose of the organization; your duties or your relatives’ duties or responsibilities in the group or organization; and whether you or your relatives are still active in the group(s).
(App. at 93.) Jabateh responded “Yes” and referred to the attached personal statement. (App. at 93.) In addition, the Asylum Application asked:
Have you, your spouse, or child(ren) ever caused harm or suffering to any person because of his or her race, religion, nationality, membership in a particular social group or belief in a particular political opinion, or ever ordered, assisted, or otherwise participated in such acts?
(App. at 95.) In response to this question, Jabateh marked “No” on the form. (App. at 93.)
In the personal statement accompanying his asylum application, Jabateh spun a tale that reimagined his role during the war and diffidently cast himself as an innocent victim of ethnic persecution. He claimed he worked as an intelligence officer for ULIMO‘s predecessor, and was merely transferred into the successor organization. Jabateh painted ULIMO‘s cause as noble, hoping to “protect Mandingo and Krahn people from being murdered and massacred by NPFL forces and to bring democracy to Liberia[.]” (App. at 99.) But Jabateh never mentioned military combat. Instead, he explained his work as largely clerical and administrative, first inside the executive headquarters and later as part of the security detail for ULIMO‘s leader. Then, he explained, when ULIMO‘s opponents took office, Jabateh and his fellow Mandingo colleagues were dismissed. And fearing persecution, he fled to the United States. In short, fabrications and falsehoods filled his written statements.
In 1999, Jabateh met with Nancy Vanlue, a U.S. Citizenship and Immigration Services (“USCIS“) asylum officer, for an interview about his application (“1999 Interview“). At the meeting, Vanlue reviewed
C. Jabateh Seeks Permanent Residency
In 2001, Jabateh applied for permanent residency in the United States. As before, he filed a written application, this time using Form I-485. And once again, his answers ignored the truth. Among other questions, Form I-485 asked “[h]ave you ever engaged in genocide, or otherwise ordered, incited, assisted or otherwise participated in the killing of any person because of race, religion, nationality, ethnic origin or political opinion?” and “have you, by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the U.S. or any immigration benefit?” (App. at 84.) Jabateh‘s answer to both: no.
Many years later, in 2011,7 USCIS officer Norman De Moose interviewed Jabateh under oath about his application for permanent residency (“2011 Interview“). De Moose reviewed and confirmed Jabateh‘s responses in his Form I-485, but tailored the interview to focus on the questions “actually applicable” to Jabateh. (App. at 603, 628.) De Moose knew the Liberian civil war involved “a great number of atrocities” with “no clean hands on either side.” (App. at 619.) So while Jabateh was still under oath, De Moose asked certain questions from Form I-485 verbatim. When he came to question 8 on Form I-485, De Moose asked Jabateh: “Have you ever engaged in genocide, or otherwise ordered, incited, assisted or otherwise
participated in the killing of any person because of race, religion, nationality, ethnic origin or political opinion?” (App. at 84, 635.) Jabateh responded “no.” (App. at 635.) De Moose also asked question 10 verbatim, asking “have you, by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the U.S. or any immigration benefit?” (App. at 84, 637.) Jabateh again answered “no.” (App. at 637.) These false answers were critical because, as De Moose explained, “somebody who takes up arms and engages in certain wartime acts would be inadmissible to the United States.” (App. at 627.)
D. Jabateh is Indicted for Fraud
Although the wheels of justice sometimes turn slowly, they do not turn without purpose. And so, nearly two decades after his arrival, a grand jury indicted Jabateh for the fraud in his immigration documents in violation of
answer of “no” to the questions related to genocide and prior misrepresentations during his immigration applications.
E. Jabateh‘s Conviction
For those who suffered under Jabateh‘s command, the two-week jury trial provided a vivid public rebuke from seventeen Liberian eyewitnesses whose “demeanor and bearing . . . underscored the almost inconceivable horrors and indignities they had endured.” (App. at 14.) The District Court observed that “[i]t is difficult to convey the force of the prosecution‘s trial evidence” (App. at 14), which established that Jabateh was a rebel commander during the Liberian civil war known as “Jungle Jabbah.” And that evidence also demonstrated that, as a rebel commander, Jabateh personally committed or ordered his troops to commit murder, enslavement, rape, and torture “because of race, religion, nationality, ethnic origin or political opinion.” (PSR ¶ 7.) Following deliberations, the jury convicted Jabateh on all four counts. The District Court later imposed a sentence of 360 months’ imprisonment, the maximum permitted, along with three years’ supervised release, and a special assessment of $400.9 Jabateh timely appealed. The District Court had subject matter jurisdiction under
II. ANALYSIS
The horrors recounted at trial, retold only in part here, are indescribably tragic. Our role on appeal, however, is to review whether the prosecution carried its burden to prove
beyond a reasonable doubt each element of the crimes charged. That the Government did on Counts Three and Four, establishing all the elements needed for the jury‘s finding of perjury under
A. 18 U.S.C. § 1546(a) Does Not Encompass Oral Statements
We begin with the charges in Counts One and Two alleging that during the 2011 Interview, and while under oath, Jabateh orally reaffirmed false answers on his permanent resident application.10 Both counts alleged that these false, oral statements violated
knowingly makes under oath, or as permitted under penalty of perjury under
section 1746 of title 28, United States Code , knowingly subscribes as true, any false statement with respect to a materialfact in any application, affidavit, or other document required by the immigration laws or regulations prescribed
thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact. . . .
The Government and Jabateh agree on this much: all that is at issue is whether
then consider the import of amendments to that text over time.11
1. The Immigration Act of 1924
The law codified as
Start with ordinary usage. As commonly understood during that time, “application” meant making a request. See
Application, Black‘s Law Dictionary 78 (2d ed. 1910) (“A putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something.“); H.W. Fowler & F.G. Fowler, The
First, the 1924 Act places “application” in a three-item series: “application, affidavit, or other document.” 1924 Act § 22(c). Congress‘s use of the phrase “or other document” then modifies both “application” and “affidavit” to make them similar in scope, as “[w]ords in a list are generally known by the company they keep.” Logan v. United States, 552 U.S. 23, 31 (2007). As limited, “application” thus refers to a request submitted in the form of a document. Beecham v. United States, 511 U.S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.“). So while “application” might have a “much more expansive sense, that isn‘t how the term was ordinarily used at the time.” Wis. Cent., 138 S. Ct. at 2072 (emphasis omitted).12
Second, the section heading of the 1924 Act adds clarity, because while “heading[s] cannot substitute for the operative text of the statute[,]” they are surely “tools available for the resolution of doubt about the meaning of a statute.” Fla. Dep‘t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (internal quotation marks and citation omitted). Congress opted to place the prohibition on “any false statement in any application” inside a section titled “Offenses in Connection with Documents,” strong evidence that “application” referred to a written request or submission. See 1924 Act § 22.
Next, we “extend[] our gaze from the narrow statutory provision at issue to take in the larger statutory landscape[.]” Henson, 137 S. Ct. at 1722. Preceding sections of a statute “are integral parts of a whole” and “define the field in which Congress was legislating[.]” New Prime, 139 S. Ct. at 538. Helpfully, Congress‘s reference to an “application” in Section 22(c) was not its only use of that term in the 1924 Act. Take Section 7(a), requiring that “[e]very immigrant applying for an immigration visa shall make application therefor in duplicate in such form
Finally, “contemporaneous usages, customs, and practices” during the era “shed light on the meaning of the language in question at the time of enactment.” McGirt v. Oklahoma, 140 S. Ct. 2452, 2468 (2020); see also Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417-18 (1899) (describing interpretation as asking “what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used,” and noting that “it is to the end of answering this last question that we let in evidence as to what the circumstances were“). Under the 1924 Act, immigrants seeking entry into the United States first obtained a visa by applying to an American consulate abroad. 1924 Act §§ 2, 7; see generally Abram Orlow, Manual on the Immigration Laws of the United States 44-45 (B‘nai B‘rith, 2d ed. 1948) (describing the documentation required to prepare visa petitions). “The formal application [was] filled out only when the [individual] present[ed] himself with his documents and evidence.” Sidney Kansas, U.S. Immigration Exclusion and Deportation and Citizenship of the United States of America 21 (2d ed. 1940). Then, “[e]ach copy of the application” was “signed by the immigrant in the presence of the consular officer and verified by the oath of the immigrant administered by the consular officer.” 1924 Act § 7(f). And a fee covered “the furnishing and verification of each application, which include[d] the furnishing and verification of the duplicate.” Id. § 7(h). Throughout, the focus of the visa process was the information in the application, supported by accompanying documentation. That ended with a “preexamination . . . conducted in the first instance by an immigrant inspector” who “shall prepare in duplicate Form I-448, ‘Manifest Data,’ which together with the application for preexamination, medical certificate, documents required in § 142.9, and other pertinent
documents presented, shall constitute the record in the case.”
2. The Immigration and Nationality Act of 1952
Congress updated Section 1546(a) in the Immigration and Nationality Act of 1952 (“1952 Act Amendment“). Pub. L. No. 82-414, Title IV, § 402, 66 Stat. 163, 275-76. Among other changes, it amended the fourth paragraph of
affidavit, or other document required by the immigration laws.” Id. (emphasis added to text inserted by amendment).
The parties agree that, at a minimum, the 1952 Act Amendment limited prosecutions under
First, consider Section 287 of the 1952 Act granting certain select immigration officers the authority to administer oaths. It also added that “any person to whom such oath has been administered . . . who shall knowingly or willfully give false evidence or swear to any false statement concerning any matter referred to in this subsection shall be guilty of perjury” under
Confirmation comes also from the amended section heading of the 1952 Act, renamed with an eye toward documents: “Fraud and misuse of visas, permits, and other entry documents.” 1952 Act § 402. See Fla. Dep‘t of Revenue, 554 U.S. at 47. This amendment demonstrates Congress‘s chosen language focuses on documents, and not oral statements. See Bedroc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“The preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a statute what it means and means in a statute what it says there.“) (internal quotation marks and citation omitted).
Short of re-writing Congress‘s work,
3. The 1976 Amendment and Statements Made “Under Penalty of Perjury”
The Government offers an alternative argument that requires still more history. Recall that before 1976 the language of
Clear it is not. For one thing, new language added to a statute ordinarily ought not be read to alter the meaning of the statute‘s existing and unchanged text. Scalia & Garner, supra at 78 (explaining that under the fixed-meaning canon “[w]ords must be given the meaning they had when the text was adopted“).18 “After
The Government responds to all of this with necessity, urging an atextual reading of
First, “[i]t is not our role to second-guess Congress’ decision,” or reimagine its words as we think appropriate. Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019). Lest we forget, “[t]he place to make new legislation, or address unwanted consequences of old legislation, lies in Congress.” Bostock, 140 S. Ct. at 1753. And that is for reasons as old as our nation: “Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes[.]” Wis. Cent., 138 S. Ct. at 2074. Second, the
Government asks for an interpretation of
Finally, what, precisely, is “perverted” about a result that holds one branch of the Government to the limits imposed by another equal branch? Not the egregious facts of this case. None, including the jury that weighed impartially the mountain of evidence marshalled against Jabateh, would view his conduct as anything less than monstrous. But none, including the Government, can argue that glancing away from the limited authority given by the people will produce a sounder, fairer, and stronger union. To the contrary, “all powers of government, legislative, executive and judicial alike, can be abused or perverted.” Jones v. City of Opelika, 319 U.S. 105, 137 (1943) (Frankfurter, J. dissenting). It is our job, under Article III of the Constitution, to enforce that solemn duty in cases both easy and hard, filled with facts both bland and nauseating.
For all these reasons, the text, context, and history of
§ 1546(a) For Plain Error
Having reached the best ordinary reading of
1. The Doctrine of Plain Error
We ground our analysis in history. The plain error doctrine allows courts to notice and correct, at their discretion, errors raised for the first time on appeal. The Supreme Court has long recognized judicial authority to address “a plain error [that] was committed in a matter so absolutely vital to defendants[.]” Wiborg v. United States, 163 U.S. 632, 658 (1896); see also Clyatt v. United States, 197 U.S. 207, 221-22 (1905). In United States v. Atkinson, the Supreme Court clarified that the doctrine protects the integrity of judicial proceedings where an unnoticed error threatens to “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160 (1936). Less than a decade later,
Olano articulated the four-prong inquiry for analyzing errors under
Here, our interpretation of
2. Defining What Errors are “Plain” Under Rule 52(b)
The term “‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.‘” Id. at 734 (citations omitted). While courts sometimes speak of statutes as either “clear” or “ambiguous,” the fault lines among possible meanings are rarely so sharp. That is why, whatever the label, “a reviewing court employs all of the traditional tools of construction” to “‘reach a conclusion about the best interpretation,’ thereby resolving any perceived ambiguity.” Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2448 (2019) (Kavanaugh, J., concurring in judgment)). While that task is not difficult, the process of interpretation may require more or less rummaging in the “toolbox” to “seiz[e] everything from which aid can be derived[.]” Ocasio v. United States, 136 S. Ct. 1423, 1434 n.8 (2016) (quoting Muscarello v. United States, 524 U.S. 125, 138–39 (1998)). And the deeper that interpretive inquiry, the less obvious, at least at the outset, the answer.
It is generally true that “lack of precedent alone will not prevent us from finding plain error.” United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013); see, e.g., United States v. Benjamin, 711 F.3d 371, 379 (3d Cir. 2013) (“Although the continuing nature of the conduct criminalized by the statute is a matter of first impression for this Court, we hold that the District Court‘s error was plain.“); see also United States v. Seals, 813 F.3d 1038, 1047 (7th Cir. 2016) (“[T]he fact that this court rarely finds plain error in [matters of first impression] does not mean that such a conclusion is never warranted.“) (internal quotation marks omitted). But for relief under the stringent Olano standard, novel questions still must be capable of measurement against “some other ‘absolutely clear’ legal norm[.]” United States v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011); see also Henderson v. United States, 568 U.S. 266, 275 (2013) (“[W]hether the law of [a] circuit initially was unclear . . . [is] likely to be particularly difficult to resolve where what is at issue is a matter of legal degree, not kind.“); Gov‘t of the V.I. v. Vanterpool, 767 F.3d 157, 163 (3d Cir. 2014); United States v. Seighman, 966 F.3d 237, 244 (3d Cir. 2020).
3. Jabateh‘s Novel Argument does not Produce Plain Error
Taken together, the novel question of whether
At bottom, Jabateh‘s challenge presents a new issue of interpretation, where only a close interpretative inquiry reveals the best reading of
C. Ample Evidence Supports Jabateh‘s Convictions Under 18 U.S.C. § 1621
Jabateh argues that his perjury convictions should also be reversed because the evidence submitted at trial failed to prove a false statement. Again, as Jabateh failed to move for a judgment of acquittal based on the insufficiency of the evidence, we review his claim for plain error. United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002). We thus “review the argument only for a manifest miscarriage of justice—the record must be devoid of evidence of guilt or the evidence must be so tenuous that a conviction is shocking.” United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014) (internal quotation marks and citation omitted). “Such an error requires a
defendant to establish that the trial judge and prosecutor were derelict in even permitting the jury to deliberate.” Id. So “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Counts Three and Four charged Jabateh with perjury in violation of
1. Count Three
Form I-485, Application to Register Permanent Resident or Adjust Status, asked Jabateh whether he had “ever engaged in genocide, or otherwise ordered, incited, assisted or otherwise participated in the killing of any person because of race, religion, nationality, ethnic origin or political opinion[.]” (App. at 84.) Jabateh responded “No” on the form. (App. at 84.) Count Three charged that Jabateh committed perjury in violation of
Jabateh argues that the Government never established that these killings occurred “because of race, religion, nationality, ethnic origin or political opinion.” (Opening Br. at 30–31.) The evidence presented tells a different story.
Or take the evidence that Jabateh and his fighters targeted victims solely based on ethnic and religious differences. After the ULIMO split along tribal lines, with Mandingo fighters forming ULIMO-K and Krahn fighters forming ULIMO-J, Jabateh and his ULIMO-K fighters targeted, tortured, and killed members of the Krahn tribe. Martha Togba testified that she observed Mandingo ULIMO-K fighters disarming non-Mandingo fighters at Zero Guard Post while chanting and wearing headbands proclaiming “No more Jesus, only Allah.” (App. at 450.) A few days later, Jabateh brutally beat, shot, stabbed, and killed Ms. Togba‘s pregnant sister, Tina, and left her body in the street to rot; all because she was in a relationship with a Krahn ULIMO-J commander.
Candidly, Jabateh does not deny his role in these atrocities. Instead, he argues his actions resulted from “a general atmosphere of cruelty and violence in the context of a
civil war seemingly waged without rules or restraint.” (Opening Br. at 31.) Even if “there were no clean hands” in the Liberian civil war (App. at 619), and even if multiple factions committed religiously, ethnically or politically motivated violence, they are of no possible relevance to Jabateh‘s convictions. There was sufficient evidence presented for a rational trier of fact to have found that Jabateh committed perjury.
2. Jabateh Gained Immigration Benefits by Fraud or Willful Misrepresentation
Remember that during the 2011 Interview immigration officials asked Jabateh whether he had, “by fraud or willful misrepresentation of material fact, ever sought to procure, or procured, a visa, other documentation, entry into the U.S., or any immigration benefit,” a question identical to that shown on his Form I-485. (App. at 84, 637.) Jabateh orally reaffirmed that his response was “no.” That, says the Government in Count Four of the indictment, is perjury in violation of
Begin with Jabateh‘s submissions in support of his application for asylum. In his attached personal statement, Jabateh stated that between 1992 and 1995 he served as an “intelligence officer” and later as a “security section liaison” with the ULIMO. (App. at 144–45.) The evidence shows otherwise, with several witnesses testifying that Jabateh never served in security, but as a commander and an active combatant in the ULIMO-K.
Jabateh argues that his “inadequately detailed personal statement” was “[b]ut a simple failure to volunteer additional
information” and insufficient to establish fraud or willful misrepresentation. (Opening Br. at 34–35.) But this is no simple oversight or innocuous omission. He not only failed to disclose his role as a combatant, he affirmatively misrepresented the scope of that role. Jabateh painted himself as a peaceful figure that actively “protect[ed] Mandingo and Krahn people from being murdered and massacred” and assisted with United Nations and ECOMOG disarmament efforts. (App. at 144–45.) The
And Jabateh‘s misrepresentations did not end with his asylum application and personal statement. In the 1999 Interview, he denied having “ever committed a crime” or even “harm[ing] anyone else.” (App. at 74, 166, 570–71.) Jabateh now claims on appeal that these questions “are too vague and ambiguous to support a conviction.” (Opening Br. at 37 (quoting App. at 74).) Yet “[c]hallenges to the clarity of a question” that arise in perjury cases, such as the challenge raised by Jabateh, “are typically left to the jury, which has the responsibility of determining whether the defendant understood the question to be confusing or subject to many interpretations.” United States v. Hird, 913 F.3d 332, 346 (3d Cir. 2019). That means we “will not disturb a jury‘s determination that a response under oath constitutes perjury unless it is entirely unreasonable to expect that the defendant understood the question posed to him.” Id. (internal quotation marks and citation omitted). Instead, we are “focused on
glaring instances of vagueness or double-speak by the examiner at the time of questioning (rather than artful post-hoc interpretations of the questions) that—by the lights of any reasonable fact-finder—would mislead or confuse a witness into making a response that later becomes the basis of a perjury conviction.” Id. at 347–48.
That standard makes quick work of this claim. For it was not “entirely unreasonable” for the jury to have expected Jabateh to have understood these simple questions. Id. at 346. Vanlue‘s testimony, for example, shows that Jabateh understood what it means to commit a crime or cause harm. Vanlue recalled that during his asylum interview Jabateh described being beaten, and his wife raped, because of his Mandingo tribal affiliation. Gallingly, he cited these acts as the basis for his asylum claim. The jury could conclude Jabateh knew right from wrong. Likewise, as already painfully recounted, the evidence presented at trial was sufficient for a rational finding that Jabateh‘s entire military career was defined by violent crime.
Logically, there was sufficient evidence for the jury to find that Jabateh gained asylum by lying about his crimes. And from there it is a small step to conclude that Jabateh perjured himself during his 2011 Interview by affirming under oath statements “which he d[id] not believe to be true.”
D. The District Court was Not Required to Merge Jabateh‘s Immigration Fraud and Perjury Convictions
For the first time on appeal, Jabateh argues that Counts One and Three charged the “same offense.” Likewise, Counts Two and Four. We disagree. “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses[,] or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932); see also United States v. Miller, 527 F.3d 54, 71 (3d Cir. 2008) (applying Blockburger‘s “same-elements” test).
To prove a violation of
Comparing these two statutes reveals at least two key differences. First,
E. Jabateh‘s Consecutive Sentence is not Plain Error
Jabateh challenges his thirty-year aggregate sentence, arguing that the District Court‘s 26-level departure and imposition of the maximum sentence on each count running consecutively was procedurally unreasonable. Once again, as Jabateh failed to raise his objections before the District Court, we review the procedural reasonableness of his sentence for plain error.21 Holguin-Hernandez v. United States, 140 S. Ct. 762, 764 (2020) (“Errors ‘not brought to the court‘s attention’ are subject to review only insofar as they are ‘plain.‘“) (quoting
We have explained that “District Courts engage in a three step process when imposing a sentence, the first being that the defendant‘s guideline range is calculated.” United States v. Stevenson, 832 F.3d 412, 431 (3d Cir. 2016) (internal
quotation marks and citation omitted). And “[t]he [District] Court [is] required to make this determination before moving on to consider any departure motions (step two) and the
1. The District Court‘s Upward Departure or Variance
The District Court departed 26 levels to impose a total sentence of 360 months, comprising consecutively-running sentences of 120 months’ imprisonment on each of Counts One and Two (violations of
to
Under
As the District Court‘s exhaustive sentencing memorandum explained, Jabateh‘s “criminal actions f[e]ll well outside the heartland of all Guidelines provisions related to immigration fraud and perjury.” (App. at 35; see also PSR ¶¶ 108, 110 (observing that “[a]fter considering the history and characteristics of the defendant, the Court may consider a sentence outside the advisory guideline system“).) Although the District Court addressed and considered Jabateh‘s conduct in Liberia, the sentence was ultimately based on the seriousness of his lies and their effect on the asylum and immigration process. As to Jabateh‘s immigration fraud, the District Court reasoned that “[i]n lying to INS about his crimes and seeking sanctuary as a persecuted refugee, [Jabateh] stood the persecutor bar and, indeed, the asylum system itself, on its head.” (App. at 33.) And as to perjury, the District Court emphasized that the “heartland of
These conclusions are neither irrational nor novel. To the contrary, they mirror decisions in similar cases imposing statutory maximum sentences for similar offenses. See, e.g., United States v. Munyenyezi, 781 F.3d 532 (1st Cir. 2015) (affirming concurrent, statutory-maximum sentences for immigration fraud convictions arising from defendant‘s concealment of her role in the Rwandan genocide); United States v. Worku, 800 F.3d 1195 (10th Cir. 2015) (affirming significant upward departure and 22-year sentence for immigration fraud conviction arising from concealment of defendant‘s human rights abuses in Ethiopia). For those reasons, there is no plain error. The Court‘s sentencing memorandum leaves no doubt that its rationale for Jabateh‘s substantive sentence, and for running the sentences consecutively, are the same. United States v. Cochrane, 702 F.3d 334, 346 (6th Cir. 2012).
2. The Imposition of Consecutive Sentences
“Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to [the] sentences that they impose[.]” Setser v. United States, 566 U.S. 231, 236 (2012); accord United States v. Payano, 930 F.3d 186, 194 n.7 (3d Cir. 2019). To exercise this discretion, a district court, “in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in
While the Guidelines advise that “[a]ll counts involving substantially the same harm shall be grouped together,”
3. The Sentence was Not Based on a Material Misapprehension of Fact
Finally, Jabateh argues that his sentence must be vacated because the District Court stated Jabateh had committed or participated in genocide.23 But the Court did not
justify the sentence based on the possible legal significance of Jabateh‘s actions. Rather, the sentence stemmed from “the egregiousness of [Jabateh‘s] lies and their effect on our immigration system,” and the fact that the “lies allowed [him] to impugn the integrity of our asylum process for almost twenty years.” (App. at 38.) Over and over, the District Court explained its decision hinged on the gravity of Jabateh‘s concealment of his “commission of every conceivable war crime” and “countless human rights offenses.” (App. at 32; App. at 28 (“I thus imposed an upward departure because of the seriousness of Defendant‘s lies, separate and apart from the horror of the crimes themselves.“) (emphasis added).) So there is no plain error in considering Jabateh‘s participation in genocidal acts, among the multitude of human rights atrocities established in the record, to fashion a reasonable sentence.24
For the above reasons, we will affirm Jabateh‘s conviction and sentence.
Notes
Act of June 25, 1948, Pub. L. No. 80-772, 62 Stat. 683, 773–74 (1948).Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury[.]
with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group . . . (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force the children of the group to another group[.]