Munyenyezi v. USA

Filing 28

///ORDER denying 1 Motion to Vacate Sentence - 2255. Petitioner's Motion to Vacate Sentence under 28 U.S.C. § 2255 (document no. 1, as amended by document no. 11) is denied. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe. (lw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Beatrice Munyenyezi,
Petitioner
v.

Case No. 16-cv-402-SM
Opinion No. 2019 DNH 178

United States of America,
Respondent

O R D E R

In 2010, a grand jury charged Beatrice Munyenyezi with
having unlawfully procured citizenship or naturalization, in
violation of 18 U.S.C. § 1425(a) (Count One) and 1425(b) (Count
Two).
counts.

In February of 2013, a petit jury convicted her on both
She was sentenced to concurrent terms of imprisonment

of 120 months and, pursuant to 8 U.S.C. § 1451(e), the court
revoked her citizenship.

Munyenyezi’s convictions and sentence

were affirmed on appeal.

United States v. Munyenyezi, 781 F.3d

532 (1st Cir. 2015).

Subsequently, Munyenyezi filed a petition seeking habeas
corpus relief, pursuant to 28 U.S.C. § 2255.

In it, she

asserted that defense counsel provided constitutionally
deficient representation; the government failed to disclose
exculpatory material prior to trial; and she was entitled to

sentence relief under Johnson v. United States, 135 S. Ct. 2551
(2015).

Then, after the Supreme Court issued its opinion in

Maslenjak v. United States, 137 S. Ct. 1918 (2017), Munyenyezi
amended her petition to allege an additional ground for habeas
relief: that the jury had been improperly instructed on the
element of “materiality.”

The court denied Munyenyezi’s habeas

petition, concluding that she was not denied effective
assistance of counsel, and neither her Brady claim nor her
Johnson claim had merit.

It did not specifically discuss her

Maslenjak claim regarding the allegedly defective jury
instructions on materiality.

Munyenyezi sought, and obtained, a certificate of
appealability as to one issue: whether “the jury was given
inaccurate instructions on her criminal liability” under
Maslenjak.

The court of appeals vacated the judgment denying

Munyenyezi’s habeas petition and remanded the matter so this
court might “address petitioner’s Maslenjak claim in the first
instance.”

Judgment of the Court of Appeals (document no. 19)

at 1.

For the reasons discussed, the court concludes that
Munyenyezi is not entitled to habeas relief on the grounds
asserted and, therefore, her petition is denied.

2

Discussion
I.

Background.
Beatrice Munyenyezi is a Hutu from Rwanda.

The factual

background describing her involvement in the 1994 Rwandan
genocide - during which Hutus murdered hundreds of thousands of
Tutsis - is set forth in the court of appeals’ decision.
United States v. Munyenyezi, 781 F.3d 532 (2015).

See

By way of

background, the court observed that:

Over the course of 100 days, roving bands of Hutus
(Rwanda’s majority ethnic group) slaughtered hundreds
of thousands of their countrymen, most of them Tutsis
(a minority group long-dominant in Rwanda). Some of
the crazed killers belonged to the Interahamwe, the
dreaded militia of a Hutu political party known by the
initials, MRND. About 7,000 Rwandans died each day,
often butchered by machete-wielding Interahamwes at
roadblocks set up to catch fleeing Tutsis. And these
killers didn’t just kill - they raped, tortured, and
disfigured too.

Id. at 535.

The evidence at trial overwhelmingly established,

beyond any reasonable doubt, that Munyenyezi was associated with
the National Republican Movement for Democracy and Development,
also known as the “MRND,” and that she oversaw one of the
infamous roadblocks at which so many Tutsi’s were murdered.
noted by the court of appeals,

[Vestine Nyiraminani] testified that in April 1994 she
and her sister got stopped at the roadblock near the
Hotel Ihuriro. . . . Seeing that their cards
identified them as Tutsis, Munyenyezi ordered them to

3

As

sit at the side of the road with other Tutsis. A half
hour later, soldiers marched them into the woods. One
of the thugs then plunged a knife into Nyiraminani’s
sister’s head. Nyiraminani escaped. But she never
saw her sister again.
Jean Paul Rutaganda testified about a time in April
1994 when (as a 15 year old) he and some other Tutsis
hid at an Episcopal school near the Hotel Ihuriro.
Rutaganda spotted Munyenyezi (he knew her by name) at
the roadblock with Interahamwes, wearing an MRND
uniform, asking for identity cards, and writing in a
notebook. “She was counting,” Rutaganda said,
“registering dead Tutsis and others who were not yet
dead.” Tutsis, he added, “were killed day and night”
in the nearby forest - something he knew from the
“screaming” and the “crying.”
Tutsi Consolee Mukeshimana also saw Munyenyezi around
this time. Mukeshimana had seen her before (at
Mukeshimana’s sister’s house). And at the roadblock
Mukeshimana watched a fatigues-wearing Munyenyezi
check IDs and lead Tutsis to other “Interahamwe so
they could get killed.”
Desperate to leave Butare because of the killing,
Tutsi Vincent Sibomana tried to run but got detained
at the roadblock. Munyenyezi asked for an ID. He
knew who she was because he had seen her buy beer at a
store where he had worked. And he had also seen an
MRND-shirt-wearing Munyenyezi walking around Butare.
Anyhow, Sibomana was too young to have an ID card,
apparently (he was only 14). An irate Interahamwe hit
his head with a rifle butt. And he fell into a ditch.
More Tutsis were there. “Beatrice” - to quote
Sibomana’s testimony - then told the other
Interahamwes to “kill” them all. Sibomana bolted.
But he saw and heard Tutsis “being killed,” hacked by
“machetes” and bludgeoned with “clubs.”

Id. at 537.

See also Id. at 538 (“[D]ressed as an Interahamwe,

she personally inspected IDs at the checkpoint, separated those

4

who would live from those who would die (and die gruesomely),
and kept records of the ghastly going-ons.”).

It was also established at trial - again, beyond any
reasonable doubt - that Munyenyezi lied (repeatedly) on various
documents that she submitted in support of her application for
entry into the country as a refugee, including the “Rwandan
Questionnaire” 1 for visa applicants, her application for
permanent residence, and, most importantly for present purposes,
her application for naturalization.

The government also

established that Munyenyezi lied to immigration officials to
conceal her participation, both directly and as an aider and
abettor, in kidnapping, false imprisonment, rape, and murder all in connection with the 1994 Rwandan genocide.

At issue is Munyenyezi’s conviction on Count One of the
indictment, which charged her with having knowingly procured her
naturalization contrary to law - that is, by knowingly providing
false information as to material facts in her Application for
Naturalization, Form N-400 – in violation of 18 U.S.C. §

1

In the wake of the genocide, United States immigration
officials prepared (and employed) the so-called “Rwandan
Questionnaire” in an effort to help determine which visa and
refugee applicants may have participated in the genocide. See
generally Testimony of Donald Heflin, Trial Transcript, Day 6
(document no. 285) at 7-18.
5

1425(a).

In her amended petition seeking habeas corpus relief,

Munyenyezi asserts that the jury was improperly instructed on
the definition of “material” and, therefore, her conviction on
Count One must be overturned and a new trial ordered.

See

Amended Petition (document no. 11) at 3. 2

II.

Maslenjak, Section 1425(a), and “Materiality”
Like Beatrice Munyenyezi, Divna Maslenjak was convicted of

having procured her naturalization contrary to law, in violation
of 18 U.S.C. § 1425(a) - that is, by having provided false
statements to immigration authorities, in violation of 18 U.S.C.
§ 1001.

At Maslenjak’s trial, the trial judge instructed the

jury that conviction was proper so long as the government
“proved that one of the defendant’s statements was false - even
if the statement was not ‘material’ and ‘did not influence the
decision to approve her naturalization.’”

2

Maslenjak, 137 S. Ct.

The government asserts that Munyenyezi’s conviction on
Count Two of the indictment - that is, having unlawfully
obtained naturalization in violation of 18 U.S.C. § 1425(b) - is
not implicated by the Maslenjak decision. Munyenyezi disagrees,
asserting that it is possible that the jury convicted her on
Count Two based upon her materially false statements to
immigration authorities (and not because she otherwise lacked
“good moral character”). Consequently, she says the jury should
have been instructed on Maslenjak’s “causality” element of
materiality. Even assuming Munyenyezi’s conviction on Count Two
is implicated by Maslenjak, it does not alter the court’s
analysis or its conclusion that any error in the jury
instructions under the later-decided Maslenjak case was harmless
beyond a reasonable doubt.
6

at 1924.

On appeal, the Supreme Court considered a fairly

simple and straightforward question: whether “a naturalized
American citizen can be stripped of her citizenship in a
criminal proceeding based on an immaterial false statement.”
Id. at 1932 (Alito, J. concurring) (quoting Petition for
Certiorari).

Unsurprisingly, the Court answered that question in the
negative.

To obtain a conviction under section 1425(a) based

upon a false statement, the government must prove the false
statement to immigration authorities was “material.”

But, in so

doing, the Court arguably created a more demanding definition of
“materiality” than had previously been thought to apply.

Before Maslenjak, the Court had explained that, “It has
never been the test of materiality that the misrepresentation or
concealment would more likely than not have produced an
erroneous decision, or even that it would more likely than not
have triggered an investigation.”

Kungys v. United States, 485

U.S. 759, 771 (1988) (emphasis in original).

Accordingly the

Court held that:

We think it safer in the naturalization context, as
elsewhere, to fix as our guide the central object of
the inquiry: whether the misrepresentation or
concealment was predictably capable of affecting,

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i.e., had a natural tendency to affect, the official
decision. The official decision in question, of
course, is whether the applicant meets the
requirements for citizenship, so that the test more
specifically is whether the misrepresentation or
concealment had a natural tendency to produce the
conclusion that the applicant was qualified.
* * *
We hold, therefore, that the test of whether Kungys’
concealments or misrepresentations were material is
whether they had a natural tendency to influence the
decisions of the Immigration and Naturalization
Service.

Kungys, 485 U.S. at 771-72 (emphasis supplied).

The Maslenjak Court did not expressly overrule, or even
question, the opinion in Kungys.

Indeed, in explaining the

“materiality” requirement of section 1425(a), the Court
repeatedly relied upon the Kungys opinion (and the concurring
opinions of various justices who agreed with the outcome of
Kungys).

And, yet, the two opinions are difficult to reconcile.

Under Maslenjak, a false statement is “material” only if (1) it
concealed a fact that was so significant that it would have
immediately disqualified the applicant for naturalization, or
(2) the misrepresented fact:

was sufficiently relevant to one or another
naturalization criterion that it would have prompted
reasonable officials, seeking only evidence concerning
citizenship qualifications, to undertake further
investigation. If that much is true, the inquiry

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turns to the prospect that such an investigation would
have borne disqualifying fruit. As to that second
link in the causal chain, the Government need not show
definitively that its investigation would have
unearthed a disqualifying fact (though, of course, it
may). Rather, the Government need only establish that
the investigation “would predictably have disclosed”
some legal disqualification.

Maslenjak, 137 S. Ct. at 1929 (emphasis supplied).

It would

seem, then, that if a misstatement did not conceal an
immediately disqualifying fact, the government must prove that,
had the applicant been truthful, the government would have
undertaken further investigation and that investigation “would
predictably have disclosed” a disqualifying fact.

That language

is difficult to reconcile with the statement in Kungys, quoted
above, that “It has never been the test of materiality that the
misrepresentation or concealment would . . . . more likely than
not have triggered an investigation.”

Kungys, 485 U.S. at 771

(emphasis in original). 3

Nevertheless, while the precise impact of Maslenjak may be
somewhat unclear (say, in prosecutions under 18 U.S.C. § 1001),
this much can be said with relative confidence: in order to

3

The Court’s opinion in Kungys is, to be sure, “maddeningly
fractured.” United States v. Latchin, 554 F.3d 709, 713 (7th
Cir. 2009) (attempting to summarize the holding of the majority
of justices in Kungys). Maslenjak, then, should be read as
clarifying Kungys.

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convict a defendant for violating 18 U.S.C. § 1425(a) by having
provided false statements, Maslenjak requires the jury to find a
direct causal connection between the defendant’s false
statement(s) and the awarding of his or her naturalization.

In

such prosecutions, a false statement that could have had “a
natural tendency to influence” the decisionmaker is not, it
would seem, sufficient.

Rather, the facts misrepresented by the

defendant either must have themselves been disqualifying, or the
government must demonstrate that, had the facts not been
misstated, reasonable officials would have undertaken further
investigation which, in turn, would “predictably have disclosed”
defendant’s ineligibility for citizenship.
Ct. at 1929.

Maslenjak, 137 S.

See also Id. at 1923.

III. The Jury Instructions at Issue.
In its instructions to Munyenyezi’s jury, the court
instructed that one of the essential elements of Court One,
which the government must prove beyond a reasonable doubt, is
that “the defendant knowingly and intentionally provided
materially false statements on her Application for
Naturalization, Form N-400.”

Jury Instructions, United States

v. Munyenyezi. No. 10-cr-85-SM (document no. 110), at 18.

With

regard to the “materiality” element, the court instructed the
jury as follows:

10

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 false statement is
“material” if the statement would have warranted a
denial or citizenship, or the statement had a natural
tendency to influence, or was capable of influencing
the decision of a government agency in making a
determination required to be made.

Id. at 21.

While the highlighted portion of the instruction is

consistent with the Supreme Court’s then-controlling opinion in
Kungys, it arguably falls short of explaining to the jury the
more significant causality requirement imposed by Maslenjak.
The court therefore assumes, for purposes of resolving this
petition, that its “materiality” instruction to the jury was
deficient under Maslenjak’s requirements.

But, that does not end the inquiry.

That the jury was

erroneously instructed on the materiality element does not
automatically entitle Munyenyezi to the habeas relief she seeks.
If that error was “harmless” and Munyenyezi was not prejudiced,
her conviction under 18 U.S.C. § 1425(a) must stand.

IV.

The Erroneous Instruction on “Materiality” was Harmless.
First, and perhaps most fundamentally, the erroneous jury

instruction about which Munyenyezi complains was not a
“structural error” that would require automatic reversal of her

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conviction.

That is, the error did not render her trial

“fundamentally unfair,” as the Supreme Court has defined that
phrase.

We have recognized that most constitutional errors can
be harmless. If the defendant had counsel and was
tried by an impartial adjudicator, there is a strong
presumption that any other constitutional errors that
may have occurred are subject to harmless-error
analysis. Indeed, we have found an error to be
“structural,” and thus subject to automatic reversal,
only in a very limited class of cases [listed examples
omitted].
The error at issue here - a jury instruction that
omits an element of the offense - differs markedly
from the constitutional violations we have found to
defy harmless-error review. Those cases, we have
explained, contain a defect affecting the framework
within which the trial proceeds, rather than simply an
error in the trial process itself. Such errors infect
the entire trial process, and necessarily render a
trial fundamentally unfair. Put another way, these
errors deprive defendants of basic protections without
which a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or
innocence and no criminal punishment may be regarded
as fundamentally fair.
Unlike such defects as the complete deprivation of
counsel or trial before a biased judge, an instruction
that omits an element of the offense does not
necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt
or innocence.

Neder v. United States, 527 U.S. 1, 8-9 (1999) (punctuation and
citations omitted) (emphasis supplied).

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The question presented, then, is whether the error at issue
requires correction.

It does not.

The lack of a complete

instruction on “materiality” consistent with the Court’s opinion
in Maslenjak was “harmless” insofar as it is clear “beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.”
24 (1967).

Chapman v. California, 386 U.S. 18,

See also Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986) (“[A]n otherwise valid conviction should not be set aside
if the reviewing court may confidently say, on the record as a
whole, that the constitutional error was harmless beyond a
reasonable doubt.”).

Cf. Fry v. Pliler, 551 U.S. 112, 116

(2007) (holding that on collateral (habeas) review of a state
court conviction, the proper standard by which to assess
constitutional error is the more lenient one articulated in
Brecht v. Abrahamson, 507 U.S. 619 (1993) - that is, whether the
error “had substantial and injurious effect or influence in
determining the jury’s verdict” - and not Chapman’s more
demanding “harmless beyond a reasonable doubt” standard).

Count One of the indictment charged Munyenyezi with having
made at least five specific, material, false statements on her
Application for Naturalization, Form N-400.

And, the jury was

instructed that, before it could convict Munyenyezi of the crime
charged in Count One, each juror must agree that she made at

13

least one particular false statement.

“By that I mean the

following: it is not sufficient if you all agree that the
defendant made some false statement, but cannot agree on which
one.

Instead, before you may convict the defendant of the crime

charged in count one, you must all agree with regard to which
specific false statement(s) the government has proved beyond a
reasonable doubt.”

Jury Instructions (document no. 110) at 20.

The jury returned a general verdict.

Nevertheless, it is

undeniable that the jury unanimously concluded, beyond a
reasonable doubt, that Munyenyezi made at least one of the false
statements identified in the indictment - that is:

Question one: Munyenyezi lied when she denied
membership in, or association with, any association,
foundation, or party and failed to disclose her
membership in, or association with, the MRND and
Interahamwe;
Question two: Munyenyezi lied when she denied having
ever persecuted any person because of race, religion,
national origin, or membership in a particular group
and failed to disclose her direct and indirect
persecution of Tutsis during the Rwandan genocide;
Question three: Munyenyezi lied when she denied
having ever committed a crime and failed to disclose
her participation in genocide, murder, rape, and
kidnapping;
Question four: Munyenyezi lied when she denied having
ever given false or misleading information to any U.S.
official while applying for any immigration benefit
and failed to disclose her prior lies on, among other
documents, the Rwandan Questionnaire; and/or

14

Question five: Munyenyezi lied when she denied having
ever lied to any U.S. official to gain entry or
admission into the United States and failed to
disclose her prior lies on, among other documents, the
Rwandan Questionnaire.

Given the evidence introduced at trial, as well as the
findings the jury necessarily had to have made, it is plain that
the now incomplete instruction on “materiality” was harmless
beyond a reasonable doubt.

Had Munyenyezi answered either

question two or question three truthfully - that is, had she
acknowledged her persecution of Tutsis and/or revealed her role
in genocide, murder, rape, and kidnapping - she would have
immediately been deemed ineligible for naturalization.

See,

e.g., Testimony of Donald Heflin, Trial Transcript, Day 6
(document no. 285) at 14 (“The Immigration and Nationality Act
says you can’t come to the U.S. if you’ve committed a crime of
moral turpitude, section 212(a)(2).

Crimes of moral turpitude

include murder or aiding and abetting in murder.”).

See

generally Maslenjak, 137 S. Ct. at 1928-29 (“If the facts the
defendant misrepresented are themselves disqualifying, the jury
can make quick work of that inquiry.

In such a case, there is

an obvious causal link between the defendant’s lie and her
procurement of citizenship. . . . In short, when the defendant
misrepresents facts that the law deems incompatible with

15

citizenship, her lie must have played a role in her
naturalization.”).

Alternatively, if Munyenyezi had answered questions one,
four, and/or five truthfully and disclosed her association with
the MRND and Interahamwe, as well as her earlier lies on, among
other forms, the Rwandan Questionnaire, the government would
have, without a doubt, undertaken further investigation that
“would predictably have disclosed some legal disqualification,”
Maslenjak, 137 S. Ct. at 1929 - that is, Munyenyezi’s
participation in the genocide, her role in the MRND and the
operation of the roadblock, and her role in the persecution,
rape, and execution of Tutsis.

See, e.g., Testimony of Donald

Monica, Trial Transcript, Day 4 (document no. 301) at 13-14
(stating that if Munyenyezi had disclosed her membership in the
MRND, he would have investigated that matter further); Testimony
of Maurice Violo, Trial Transcript, Day 7 (document no. 292) at
57-59, 90 (testifying that if Munyenyezi had disclosed her
membership in the MRND, “we would investigate exactly what that
was and what her involvement in that organization was.”);
Testimony of Donald Heflin, Trial Transcript, Day 6 (document
no. 285) at 30 (describing membership in the MRND and
Interahamwe as a “red flag” that would have resulted in either
immediate disqualification or, at a minimum, further

16

investigation into her role in the organization).

See also Id.

at 13 (noting that if a response prompted a yellow or red flag,
“We would go back out and ask that more questions be asked, and
in some cases we just simply wouldn’t be able to issue the visa
or the refugee travel documents.

The burden is really on the

applicant for a visa or refugee status in these cases.
plenty of people who want to come to the U.S.

We have

We can just skip

over people that have these kind of problems and take the next
person in line.”).

In short, then, even assuming the court’s instruction on
“materiality” fell short of explaining the heightened causality
requirements recognized in Maslenjak, that error was, under the
circumstances, harmless beyond a reasonable doubt.

Had

Munyenyezi truthfully answered any one of the five questions
identified in the indictment, her application for naturalization
would have been immediately denied or, at a minimum, further
investigation into the nature of Munyenyezi’s conduct during the
genocide would have been conducted.

Such an investigation would

have inevitably led to the discovery of what the evidence
overwhelmingly established - that Munyenyezi actively
participated with the MRND and Interahamwe in perpetrating
murder, rape, and kidnapping, as part of the Rwandan genocide.

17

Finally, the court notes that Munyenyezi did not contest
making the (false) statements to immigration authorities, nor
did she claim that those statements were immaterial to her
eligibility for naturalization.

Rather, she asserted that the

witnesses against her were either lying or had mistaken her for
some other (unidentified) woman who dressed in MRND attire,
operated the roadblock outside of Munyenyezi’s home, and
participated in the genocide.
claims.

Plainly, the jury rejected those

Consequently, the omitted element - a proper

instruction on the materiality of the false statements charged pertained to a matter that was both uncontested and established
by proof beyond a reasonable doubt.

See generally Neder, 527

U.S. at 17 (“In this situation, where a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that
the jury verdict would have been the same absent the error, the
erroneous instruction is properly found to be harmless.”)
(emphasis supplied); Johnson v. United States, 520 U.S. 461, 470
(1997) (noting that “evidence supporting materiality was
overwhelming [and] materiality was essentially uncontroverted at
trial,” and stating that “On this record there is no basis for
concluding that the error [failing to instruct the jury on
“materiality”] seriously affected the fairness, integrity or
public reputation of judicial proceedings.

18

Indeed, it would be

the reversal of a conviction such as this which would have that
effect.

Reversal for error, regardless of its effect on the

judgment, encourages litigants to abuse the judicial process and
bestirs the public to ridicule it.”) (citations and internal
punctuation omitted).

Because the court concludes that Munyenyezi’s claim fails
on the merits, it need not address the government’s alternative
arguments concerning procedural default and the (generally
disfavored) concurrent sentence doctrine.

Conclusion
Petitioner’s Motion to Vacate Sentence under 28 U.S.C. §
2255 (document no. 1, as amended by document no. 11) is denied.

The Clerk of Court shall enter judgment in accordance
with this order and close the case.

Rule 11 Certificate
As the interplay between Kungys and Maslenjak is
undeveloped, and resolution of this petition turns on both
a construction and application of Maslenjak’s causation
rules as they inform “materiality,” as well as an
assessment of the weight of the evidence of guilt presented

19

at trial, I find that those issues arguably satisfy the
petitioner’s burden to make a substantial showing of the
denial of a constitutional right (28 U.S.C. § 2253(c)(2)),
and so warrant the issuance of a certificate of
appealability with respect to those issues.

See Rule 11,

Rules Governing Section 2255 Proceedings.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
October 10, 2019
cc:

Richard Guerriero, Esq.
John A. Capin, AUSA
Mark Quinlivan, AUSA

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