United States v. Gervais (Ken) Ngombwa

United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-1688 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Gervais (Ken) Ngombwa lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________ Submitted: May 16, 2018 Filed: June 22, 2018 ____________ Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges. ____________ SHEPHERD, Circuit Judge. The Rwandan Genocide is one of the darkest chapters in human history. Over the span of 100 days, an estimated 800,000 people died. At least a million more were displaced. During and shortly after the tragedy, the United States admitted a limited number of refugees from Rwanda with priority given to those who were in the most danger. Among those admitted were Gervais (“Ken”) Ngombwa and purported members of his family. The government alleged and proved at trial that his admission, status, and eventual naturalization were based on material falsehoods. And at sentencing, the government proved to the district court’s1 satisfaction that the falsehoods were used to conceal a darker secret: Ngombwa’s participation in the Rwandan Genocide. Ngombwa now alleges he deserves a new trial because his representation was constitutionally deficient and, failing that, he should be re-sentenced because the district court made several errors at sentencing. We disagree and affirm his conviction and sentence. I. During the Rwandan Genocide, life and death were tied to one’s ethnic background. The decisive fault line was between the Hutus and Tutsis. The former made up 85% of the population; the latter made up roughly 14%. Relations between the two ethnic groups have historically been fraught. In 1993, major parties representing both ethnicities entered into a power-sharing agreement known as the Arusha Accords. The leader of this power-sharing government, a Hutu, was assassinated in April of 1994. Extremist Hutu groups, already unhappy with the Arusha Accords, seized on this moment. They unleashed a wave of mass murder and violence against both Tutsis and those Hutus who were thought to sympathize with the Tutsis in what is now known as the Rwandan Genocide. Against this backdrop, Ngombwa, a Hutu, sought refuge in the United States. In June 1994, two months after the outbreak of the Genocide, Ngombwa left Rwanda 1 The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa. -2- for a refugee camp in Tanzania. With him were his purported wife, Antoinette Mukakabanda (a Tutsi), and seven minors—only some of whom were his biological children.2 Ngombwa was flagged for potential resettlement because he was believed to be in a mixed marriage. And in 1998, he began a series of interviews with UN officials, aid workers, and, eventually, a U.S. immigration attache, to assess whether he (and his alleged family) should be granted refugee status in the United States. Over the course of these interviews, Ngombwa told a number of lies. These falsehoods were designed to enhance the perceived risks if he were to stay in the region. See Sent. Mem. 10-13. For example, ...

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