United States v. Mohammed Jabateh

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
______________
OPINION
______________
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
2
supporting the jury’s findings. And his claims of sentencing
error ignore the careful and detailed reasoning of the District
Court.
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 18 U.S.C. § 1621 and 18 U.S.C. § 1546(a). While
we find no error in Jabateh’s convictions for perjury under
§ 1621, his convictions under § 1546(a) are a different matter.
In every case, of course, “[t]he Constitution gives a criminal
defendant the right to have a jury determine, beyond a
reasonable doubt, his guilt of every element of the crime with
which he is charged.” United States v. Gaudin, 515 U.S. 506,
522–23 (1995). The statutory text alone defines those
elements. Here, the text of § 1546(a) criminalizes fraud in
immigration documents. By contrast, the Government did not
charge Jabateh with fraud in his immigration documents, only
with orally lying about those documents. That is a distinction
unsupported by the ordinary and best reading of § 1546(a), and
we agree with Jabateh that the Government’s interpretation is
incorrect.
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 § 1546(a) meets the stringent
standards for reversal for “plain error” the Federal Rules of
Criminal Procedure require. For that reason, we will affirm his
conviction in full.
3
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
1
Luca Renda, Ending Civil Wars: The Case of Liberia,
23-Fall Fletcher F. World Aff. 59, 61 (1999).
2
Id.3
Id. at 62 & n.11.
4
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
height of the civil war, from 1992 through 1995, Jabateh led
ULIMO’s Zebra Battalion at the frontlines of the conflict in
Western Liberia. Under Jabateh’s command, fighters
brutalized prisoners of war and civilians alike. Their crimes
were breathtaking in their scope and cruelty, including murder,
rape, torture, ritual cannibalism, and human enslavement. We
recount only some of the atrocities told at trial to the extent
relevant to the issues raised on appeal.
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
4
Id.5
Three witnesses at trial identified Jabateh in the
courtroom as the ULIMO Commander known as Jungle
Jabbah.
6
A less than subtle reference, as “[z]ero means [‘]to get
rid of you[’] in the Liberian language.” (App. at 675.)
5
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.
6
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 town complained to the Economic
Community of West African States Monitoring Group
(“ECOMOG”) after ULIMO-K killed and beat several
villagers and looted their homes, Jabateh and his troops
returned to mete out punishment. Soldiers gathered the
townspeople and pressed them into slavery. For little more than
sport, Jabateh ordered several villagers, including the village
chief, executed, and their hearts cut out. Grim acts of
cannibalism followed.
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”)
7
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.)
8
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 Jabateh’s
written responses in his Asylum Application, and his
accompanying personal statement. During the interview,
Vanlue asked Jabateh to confirm his answers, including
whether he had “ever committed a crime” or “harmed anyone
else.” (App. at 166, 570–71.) Jabateh was firm, responding
“no.” Accepting his sworn answers, Vanlue recommended
Jabateh be granted asylum. Based on his application responses
and Vanlue’s recommendation, Jabateh was granted asylum.
9
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
7
Although Jabateh applied for permanent residency in
2001, his initial interview occurred in 2007, and another four
years passed before his follow-up interview in 2011. The
Government explains this delay as “just a lag in the
immigration system.” (Oral Arg. Tr. at 50–51.) The accuracy
of that charitable characterization is beyond the scope of this
appeal.
10
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 18 U.S.C. § 1546(a)
(Counts One and Two) and perjury in violation of 18 U.S.C.
§ 1621 (Counts Three and Four).8 But the long delay came with
a cost: all four counts related to Jabateh’s oral statements
during the 2011 Interview. Recall that Jabateh filed his Form
I-485 application for permanent residency in 2001, so the
statute of limitations for any misconduct related to that filing
had long passed by the time of Jabateh’s indictment in 2016.
See 18 U.S.C. § 3282 (five-year statute of limitations);
18 U.S.C. § 3291 (ten-year statute of limitations for certain
immigration offenses). That left the Government with only
Jabateh’s oral responses in the 2011 Interview affirming his
8
The Government explained that Jabateh was not
indicted until 2016 because “[t]he information that proved the
misconduct here did not come to the Government’s attention
until well after the 2011” Interview. (Oral Arg. Tr. at 50.)
11
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 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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
9
The District Court separately issued a detailed
memorandum outlining its reasoning for the sentence imposed.
12
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 18 U.S.C. § 1621. And while the text of 18
U.S.C. § 1546(a) cannot be read to reach the conduct charged
by the Government in Counts One and Two, that error is not
plain. Finally, there are no sufficiency or sentencing errors that
warrant reversal. So we will affirm.
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 18 U.S.C. § 1546(a) which prohibits a
particular kind of conduct where a person:
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 material fact in any application,
affidavit, or other document required by the
immigration laws or regulations prescribed
10
To repeat, that Jabateh had never “engaged in
genocide, otherwise ordered, incited, assisted or otherwise
participated in the killing of any person because of race,
religion, nationality, ethnic origin or political opinion” (Count
One), and that he had never procured an immigration benefit
by fraud or willful misrepresentation of a material fact (Count
Two). (App. at 75–76.)
13
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 § 1546(a) is best read to reach
Jabateh’s oral statements during the 2011 Interview. Deciding
that question turns not on Jabateh’s butchery and debasement
of innocents illustrated to, and found by, a jury of his peers.
Rather, no matter how troubling the facts, perhaps, especially
when so, “our job is to interpret the words consistent with their
‘ordinary meaning . . . at the time Congress enacted the
statute.’” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,
2070 (2018) (alteration in original) (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979)); see also New Prime, Inc. v.
Oliveira, 139 S. Ct. 532, 539 (2019). “After all, only the words
on the page constitute the law adopted by Congress and
approved by the President. If judges could add to, remodel,
update, or detract from old statutory terms inspired only by
extratextual sources and our own imaginations, we would risk
amending statutes outside the legislative process[.]” Bostock v.
Clayton Cnty., 140 S. Ct. 1731, 1738 (2020). Such a result
would, of course, “deny the people the right to continue relying
on the original meaning of the law they have counted on to
settle their rights and obligations.” Id. And “the people”
protected by our system of laws include both the innocent and
the guilty. So to interpret the meaning of § 1546(a) in its
current form, we begin with the text as originally enacted and
14
then consider the import of amendments to that text over
time.11
1. The Immigration Act of 1924
The law codified as § 1546(a) was first enacted as part
of the Immigration Act of 1924 (“1924 Act”). Immigration Act
of 1924, Pub. L. No. 68-139, 43 Stat. 153. The relevant
provision fell within the section entitled “Offenses in
connection with documents” and originally stated: “Whoever
knowingly makes under oath any false statement in any
application, affidavit, or other document required by the
immigration laws or regulations prescribed thereunder, shall,
upon conviction thereof, be fined . . . or imprisoned . . . , or
both.” 1924 Act § 22(c). Our focus is on the term “application,”
and how that word, as used by Congress, is best construed.
Start with ordinary usage. As commonly understood
during that time, “application” meant making a request. See
11
Prior decisions interpreting § 1546(a) provide little
help. While we considered the meaning of § 1546(a) in United
States v. Ashurov, our review was limited to the presentment
clause. 726 F.3d 395 (3d Cir. 2013). The Ninth Circuit’s
decision in United States v. Chu addressed what constitutes an
“oath” in the context of § 1546(a), but it did not address
whether § 1546(a) extends to oral statements. 5 F.3d 1244 (9th
Cir. 1993). The First Circuit construed § 1546(a) to apply only
where “the statement was made in an application required by
the United States immigration laws and regulations.” United
States v. Boskic, 545 F.3d 69, 85 (1st Cir. 2008). But it did not
explain its conclusion that § 1546(a) applied to statements in
the required immigration document, but not statements about
those documents.
15
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 Concise Oxford Dictionary
of Current English 39 (7th ed. 1919) (defining “application” as
the “making of a request”); Noah Webster, An American
Dictionary of the English Language 45 (New York, White &
Sheffield 1841) (defining “application” as “[t]he act of making
request, or soliciting”). While “application” standing alone, in
1924 as now, could refer to an oral request, “[w]idening our
view to take in” the entire statutory context shows that
Congress meant a written submission. Henson v. Santander
Consumer USA Inc., 137 S. Ct. 1718, 1722 (2017).
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
12
Cases from the period construing “application” in
other contexts apply the same meaning. See, e.g., N. Assurance
Co. of London v. Grand View Bldg. Ass’n, 183 U.S. 308, 359
16
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.
(1902) (“[H]ere the right is asserted to prove, not only that the
assured did not make the statements contained in his answers,
but that he never read the application[.]”) (quoting N.Y. Life
Ins. Co. v. Fletcher, 117 U.S. 519, 529 (1886)); United States
v. Poinier, 140 U.S. 160, 162 (1891) (“It would seem from this
[context] that the ‘applications’ were presumed to be in
writing[.]”); Rushing v. Manhattan Life Ins. Co. of N.Y., 224 F.
74, 75 (8th Cir. 1915) (referring to an application for a life
insurance policy as a “written application”); U.S. Fid. & Guar.
Co. v. Egg Shippers’ Strawboard & Filler Co., 148 F. 353, 357
(8th Cir. 1906) (“It is altogether clear that the written statement
which the defendant failed to attach to or indorse on the bond
is an application or representation within the meaning of the
Iowa statute.”); Carrollton Furniture Mfg. Co. v. Am. Credit
Indemn. Co. of N.Y., 124 F. 25, 30 (2d Cir. 1903) (“In this case
. . . there was an untrue statement in the application signed by
the insured[.]”).
17
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 as shall be by regulations prescribed.” 1924 Act
§ 7(a). None would read a directive to submit duplicate
applications to mean anything besides written forms. Or
consider Section 7(f), explaining that “[e]ach copy of the
application shall be 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, by
cross-reference, including a false statement in a document
required under Section 7(f) subjected an affiant to prosecution
under Section 22(c).13 So we follow the “natural presumption
that identical words used in different parts of the same act are
intended to have the same meaning.” Atl. Cleaners & Dyers,
Inc. v. United States, 286 U.S. 427, 433 (1932). That means
Congress used the term “application” consistently to mean a
written instrument throughout the 1924 Act.
13
Recall that Section 22(c), later codified as 18 U.S.C.
§ 1546(a), provided “[w]hoever knowingly makes under oath
any false statement in any application, affidavit, or other
document required by the immigration laws or regulations
prescribed thereunder, shall, upon conviction thereof, be fined
. . . or imprisoned . . . , or both.” 1924 Act § 22(c).
18
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
19
documents presented, shall constitute the record in the case.” 8
C.F.R. § 142.11 (1941). And it was a false statement within
that “application, affidavit, or other [required] document” that
could trigger criminal penalty. See, e.g., United States ex rel.
Fink v. Reimer, 16 F. Supp. 487 (S.D.N.Y. 1936), aff’d, 96 F.2d
217 (2d Cir. 1938) (Hand, J.) (obtaining a visa as a result of a
false statement that misrepresented the applicant’s identity
violated Section 22(c)); see also Kansas, supra, at 65
(describing Section 22 as addressing “forged, false, or altered
documents”).
Taken together, the best reading of “application” in the
1924 Act means only written statements submitted in
document form. With that meaning in mind, we turn to
Congress’s subsequent statutory language that builds on the
1924 Act.14
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 § 1546(a) to
apply to “[w]hoever knowingly makes under oath any false
statement with respect to a material fact in any application,
14
In 1948, Congress codified the criminal law of the
United States into a single part of the United States Code, Title
18. As a result, Section 22(c) of the 1924 Act moved to the
fourth paragraph of 18 U.S.C. § 1546(a) without change, and
with a new name, “Fraud and Misuse of Visas and Permits.”
See Act of June 25, 1948, Pub. L. No. 80-772, 62 Stat. 683,
771–72 (1948).
20
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 § 1546(a) to only
material false statements, rather than prosecution for any
passing falsity. But does it do more? The Government says yes,
and reads the phrase “with respect to” as covering all false
material statements whether “made orally, regarding the
written application, as well as in writing.” (Response Br. at 22.)
Jabateh posits that Congress added “with respect to a material
fact” only to “clarify that the false statement, to be
prosecutable, must be material” and not “to have [the]
substantive broadening effect” of extending § 1546(a) to oral
statements. (Opening Br. at 28.) As with the 1924 Act, our
answer turns on the best reading of “the particular statutory
language at issue, as well as the language and design of the
statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988); see also Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 167 (2012)
(explaining that under the whole-text canon “[i]t is the most
natural and genuine exposition of a statute to construe one part
of the statute by another part of the same statute”).
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 18 U.S.C. § 1621. 1952 Act § 287(b).15 Section 1621 is
15
This provision is codified at 8 U.S.C. § 1357(b), and
has remained essentially unchanged since the 1952 Act.
21
the general perjury statute applicable not just to immigration
proceedings, but “in any case in which a law of the United
States authorizes an oath to be administered[.]” 18 U.S.C.
§ 1621(1). So false statements made under oath to immigration
officers, including oral statements, may be subject to
prosecution for perjury. And there was little point to Congress
adding that authority if, as the Government contends, oral
misstatements were already prohibited under § 1546(a). To the
contrary, “[w]e usually ‘presume differences in language like
this convey differences in meaning.’” Wis. Cent., 138 S. Ct. at
2071 (quoting Henson, 137 S. Ct. at 1723). “And that
presumption must bear particular strength when the same
Congress passed both statutes to handle much the same task.”
Id. at 2071–72. Following that interpretive path, the best
reading of 1952 Act Amendment is that material, false
statements made under oath are chargeable under § 1546(a)
only if made in a document, while oral statements about those
same documents are chargeable as perjury under § 1621.
Indeed, “[m]ore confirmation yet comes from a neighboring
term in the statutory text.” New Prime, 139 S. Ct. at 540.
Because looking directly to § 1621 shows that Congress knew
how to make a criminal statute applicable to both oral and
written statements.16
16
This was equally true of the version of 18 U.S.C.
§ 1621 before the 1952 Act:
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
22
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, § 1546(a) is not
naturally read to apply to oral statements. Indeed, any other
reading, including the broad interpretation posited by the
Government, is “unmoor[ed]” from the text and “opens the
door to a world of disquieting consequences—which we would
need far stronger textual support to believe Congress
intended.” Maslenjak v. United States, 137 S. Ct. 1918, 1927
(2017).
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[.]
Act of June 25, 1948, Pub. L. No. 80-772, 62 Stat. 683, 773–
74 (1948).
23
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 § 1546(a) applied only to false statements made
“under oath” because, at that time, administrative necessity
required applicants to appear in person to sign documents
under oath.17 In 1976, Congress again amended § 1546(a) to
add an option to sign documents “under penalty of perjury.”
Pub. L. No. 94-550, 90 Stat. 2534, 2535 (1976) (“1976
Amendment”). The 1976 Amendment changed § 1546(a) “by
inserting immediately after ‘under oath’ the following: ‘, or as
permitted under penalty of perjury under section 1746 of title
28, United States Code, knowingly subscribes as true[.]’” Id.
This, the Government argues, served to “make clear that the
offense extends to [an oral] false statement under oath as well
as in writing.” (Response Br. at 23.)
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 all, if judges could freely invest old
17
See, e.g., Kansas, supra, at 21 (“The formal
application is filled out only when the alien presents himself
[to the Consulate] with his documents and evidence.”).
18
The Government suggests that we look to legislative
history for support (Govt. Supp. Br. at 15–16), but doing so
“would risk failing to take account of legislative compromises
essential to the law’s passage and, in that way, thwart rather
24
statutory terms with new meanings, we would risk amending
legislation outside the single, finely wrought and exhaustively
considered, procedure the Constitution commands.” New
Prime, 139 S. Ct. at 539 (internal quotation marks and citation
omitted). So while the 1976 Amendment added a new,
alternative method for attestation, nothing suggests that we are
free to change the ordinary understanding of the untouched
portion of the text.
The Government responds to all of this with necessity,
urging an atextual reading of § 1546(a) that reaches oral
statements because to hold otherwise “would permit a
defendant to escape Section 1546(a) culpability for lying under
oath to immigration officials about the contents of required
immigration documents,” which the Government characterizes
as a “perverted result” that “should be avoided.” (Response Br.
at 21.) That plea deserves a response.
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
than honor the effectuation of congressional intent.” New
Prime, 139 S. Ct. at 543 (internal quotation marks and
alterations omitted). So we “must presume that a legislature
says in a statute what it means and means in a statute what it
says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–
54 (1992).
25
Government asks for an interpretation of § 1546(a) so novel
that it concedes it is aware of no decision of any court applying
the meaning it seeks. (See Oral Arg. Tr. at 32.) That is more
likely explained by the natural reading of the statute than
coincidence.
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) show that the best reading of the statute applies only
to material, false statements made in a document under oath or
under penalty of perjury, not false statements made orally
under oath about that document. See Kansas v. Garcia, 140 S.
Ct. 791, 803 (2020) (describing the conduct outlined in § 1546
as “immigration-document fraud”).19
19
In supplemental briefing, the Government argues for
the first time that even if Jabateh’s conviction under § 1546(a)
26
B. Reviewing Jabateh’s Convictions Under § 1546(a)
For Plain Error
Having reached the best ordinary reading of § 1546(a),
we consider whether Jabateh’s convictions under Counts One
and Two may stand. Recall that Jabateh did not raise this issue
before the District Court. As a result, our review is defined by
Federal Rule of Criminal Procedure 52(b), and we may only
reverse if the erroneous interpretation of § 1546(a) is “plain.”
United States v. Payano, 930 F.3d 186, 192 (3d Cir. 2019)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
And under well-established principles, the error here is not.
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,
does not stand based on his oral statements, he is still
“‘punishable as a principal’ under 18 U.S.C. § 2(b)” because
he “caused” an immigration officer “to make the answers on
his behalf on the document.” (Govt. Supp. Br. at 7.) Section
2(b) provides “[w]hoever willfully causes an act to be done
which if directly performed by him or another would be an
offense against the United States, is punishable as a principal.”
18 U.S.C. § 2(b). But the Supreme Court has cautioned that
“[t]o uphold a conviction on a charge that was neither alleged
in an indictment nor presented to a jury at trial offends the most
basic notions of due process.” Dunn v. United States, 442 U.S.
100, 106 (1979). Even if the evidence is clear that Jabateh
caused an immigration officer to include false answers in the
immigration form, as the Government now contends, it is long
past the time for the Government to add charges to its
indictment.
27
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, Rule 52(b) codified
Atkinson’s definition of plain error. See Advisory Committee
Notes on Fed. R. Crim. Proc. 52; accord Olano, 507 U.S. at
736.
Olano articulated the four-prong inquiry for analyzing
errors under Rule 52(b) and the plain error doctrine. Courts
may provide remedies only if (1) there is an “error[,]” (2) the
error is “plain[,]” and (3) the plain error “affect[s] substantial
rights.” Olano, 507 U.S. at 732–34; see also Johnson v. United
States, 520 U.S. 461, 466–67 (1997). Meeting all three allows
a court to “correct a plain forfeited error affecting substantial
rights if the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Olano, 507 U.S. at736 (citing Atkinson, 297 U.S. at 160). Still, “Rule 52(b) is
permissive, not mandatory.” Id. at 735. And the result is a high
bar for reversing plain errors because a “plain error affecting
substantial rights does not, without more, satisfy the Atkinson
standard, for otherwise the discretion afforded by Rule 52(b)
would be illusory.” Id. at 736–37.
Here, our interpretation of § 1546(a) does not meet the
stringent test of Rule 52(b) because, applying our prior
28
decisions, the issue is not sufficiently “plain” to warrant
reversal.
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]
29
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 § 1546(a)
is best read to include oral statements is not an interpretative
exercise that falls within the exacting limits of Federal Rule of
Criminal Procedure 52(b). First, it cannot be said that
the meaning of § 1546(a) was “clear” as we normally
understand clarity in legal interpretation, for the meaning of
§ 1546(a) was unsettled both at Jabateh’s trial and throughout
this appeal. Henderson, 568 U.S. at 275; see also United States
v. Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012) (noting that,
in plain error review, “‘plain’ simply means ‘clear’”) (citation
omitted). Second, as all parties agree, there is no instance of
any other court considering the ordinary meaning of § 1546(a).
Vanterpool, 767 F.3d at 163. Nor is there any controlling or
persuasively clear “legal norm” on the meaning of the
provision. Stinson, 734 F.3d at 184; Nwoye, 663 F.3d at 466.
At bottom, Jabateh’s challenge presents a new issue of
interpretation, where only a close interpretative inquiry reveals
the best reading of § 1546(a). That, under controlling decisions
30
of Federal Rule 52(b), is not a clear, plain error. We do not
doubt that “[f]ew constitutional principles are more firmly
established than a defendant’s right to be heard on the specific
charges of which he is accused.” Dunn v. United States, 442
U.S. 100, 106 (1979). But the limits on our review prescribed
by the Supreme Court in Rule 52(b) under the authority
provided by Congress in the Rules Enabling Act, 28 U.S.C.
§ 2072, bind our review. As a result, we cannot disturb
Jabateh’s conviction.20
C. Ample Evidence Supports Jabateh’s Convictions
Under 18 U.S.C. § 1621Jabateh 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
20
Jabateh asks this Court to employ the “rule of lenity”
to find in his favor “if there were some doubt about the
meaning” of § 1546. (Opening Br. at 29.) Having arrived at the
best ordinary meaning of the statute, we find that the rule of
lenity has no application here. See United States v. Johnman,
948 F.3d 612, 620 (3d Cir. 2020) (holding that the rule of lenity
“may be applied only where we are left with ‘grievous
ambiguity’ after applying all other traditional tools of statutory
interpretation”) (citation omitted).
31
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 18 U.S.C. § 1621(1). As usual, the text governs.
Section 1621(1) provides that an individual is guilty of perjury
if, after “tak[ing] an oath before a competent tribunal [or]
officer . . . that he will testify, declare, depose, or certify truly,
or that any written testimony, declaration, deposition, or
certificate by him subscribed, is true,” the individual “willfully
and contrary to such oath states or subscribes any material
matter which he does not believe to be true[.]” 18 U.S.C.
§ 1621(1). Distilled to its elements, the Government must show
that Jabateh 1) willfully 2) made a false statement 3) under
oath 4) before a tribunal or officer 5) about a material matter.
See United States v. Dunnigan, 507 U.S. 87, 94 (1993). The
record shows that the Government amply carried its burden.
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 18 U.S.C. § 1621 during his 2011 Interview when,
under oath, he falsely affirmed the truth of this response.
32
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.
To start, witnesses recounted in graphic detail the
rampant violence perpetrated by Jabateh, personally or under
his orders, for factional political affiliation. Hawa Gonoie
testified that at just thirteen years old she witnessed Jabateh
order his men to kill and mutilate a suspected spy. Janghai
Barclay testified that she watched Jabateh declare a captured
young man a traitor with no more than a glance and order his
execution. Kafumba Konneh testified that he watched Jabateh
order executions of suspected spies and NPFL prisoners of war
more than once.
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
33
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 § 1621
because Jabateh gained asylum by lying in his Asylum
Application and again during 1999 Interview. That is correct.
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
34
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 testimony of seventeen
witnesses to his violence brought forth the truth. These
misrepresentations no doubt led Jabateh to be granted asylum.
Nancy Vanlue, the asylum officer who conducted the 1999
Interview, testified that, had she known Jabateh misrepresented
his positions in ULIMO, he would have been barred from
obtaining asylum as a persecutor.
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
35
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.” 18 U.S.C.
§ 1621(1). For all those reasons, we find no plain error in
Jabateh’s conviction under Count Four.
36
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 § 1546(a), the Government
needed to show that Jabateh 1) “knowingly” 2) “under oath”
3) made “any false statement” 4) “with respect to a material
fact” 5) in a “document required by the immigration laws or
regulations.” 18 U.S.C. § 1546(a). By contrast, to prove a
violation of § 1621(1), the Government needed to establish that
Jabateh 1) “willfully” 2) made a false statement 3) under oath
4) before a tribunal or officer 5) about “any material matter.”
18 U.S.C. § 1621(1).
Comparing these two statutes reveals at least two key
differences. First, § 1546(a) requires proof that the “false
statement” was in a “document required by the immigration
laws or regulations.” Section 1621(1) contains no such
element. Second, § 1546(a) and § 1621(1) require different
states of mind. Section 1546(a) requires proof of a
“knowingly” false statement, while § 1621(1) requires proof
the defendant acted “willfully.” Cf. United States v. Sherman,
150 F.3d 306, 311 (3d Cir. 1998) (describing “knowingly” as
37
“a reduced mens rea” as compared to “willfully”) (emphasis
omitted); United States v. Gross, 511 F.2d 910, 914–15 (3d Cir.
1975) (“Congress chose to provide different mens rea
elements: Unlike the general perjury statute, § 1623 requires
that a false statement be made ‘knowingly,’ rather than
‘willfully.’”). As each statute requires the Government to
establish at least one element that is not required by the other
statute, there is no plain error in declining to merge the counts.
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 Fed. R. Crim. Proc. 52(b)). He does not meet that
rigorous test.
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
21
Although Jabateh first argued we review his sentence
for an abuse of discretion (Opening Br. at 46), he conceded at
oral argument that he was “up against plain error” (Oral Arg.
Tr. at 52). We agree with that revised position, as Jabateh has
not pointed to where he objected to an above-Guidelines
sentence. Nor can we locate any objection in the record.
38
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
§ 3553(a) factors (step three)[.]” Id. Jabateh argues that the
District Court committed procedural errors by 1) imposing an
unjustified upward departure; 2) imposing consecutive
sentences; and 3) basing Jabateh’s sentence on a material
misapprehension of fact.
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 § 1546(a)) and sixty months’
imprisonment on each of Counts Three and Four (violations of
§ 1621).22 That represented the statutory maximum for each
count of conviction. The District Court based its sentence on
two alternative grounds: 1) “an upward departure because of
the seriousness of [Jabateh’s] immigration offenses, pursuant
22
Jabateh does not challenge the District Court’s initial
calculation of the advisory Guideline range of fifteen months’
to twenty-one months’ imprisonment. Rather, he challenges
the 26-level upward departure, which led to an adjusted
Guidelines range of 292 to 365 months’ imprisonment. (App.
at 11.) The District Court then imposed the combined statutory
maximum of 360 months for all four counts. (App. at 11.) See
18 U.S.C. § 1546(a) (statutory maximum of ten years for the
first and second offense under this section); 18 U.S.C. § 1621(statutory maximum of five years).
39
to Guidelines § 5K2.0”; and 2) “an upward variance from the
Guidelines, pursuant to 18 U.S.C. § 3553[.]” (App. at 26–27.)
Under § 5K2.0, a “sentencing court may depart from the
applicable guideline range if . . . the court finds, pursuant to 18
U.S.C. § 3553(b)(1), that there exists an aggravating or
mitigating circumstance[.]” U.S.S.G. § 5K2.0(a)(1). The
District Court calculated the initial Guidelines range using the
2010 Sentencing Guidelines, which did “not take into
consideration the significant aggravating circumstances—the
serious human rights offenses—the defendant concealed when
he committed the instant offense[s].” (PSR ¶ 108.)
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 Guidelines § 2J1.3 is far
removed from the kind of perjury [Jabateh] committed here:
perjury that undermines the foundations of our immigration
and asylum system.” (App. at 35.)
40
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 section 3553(a).” 18 U.S.C. § 3584.
Here, the District Court appropriately weighed the factors set
forth in 18 U.S.C. § 3553(a).
While the Guidelines advise that “[a]ll counts involving
substantially the same harm shall be grouped together,”
41
U.S.S.G. § 3D1.2, they readily acknowledge a district court’s
authority to impose concurrent or consecutive sentences,
U.S.S.G. §§ 5G1.2(d), 5G1.3(b). “If the sentence imposed on
the count carrying the highest statutory maximum is less than
the total punishment, then the sentence imposed on one or more
of the other counts shall run consecutively, but only to the
extent necessary to produce a combined sentence equal to the
total punishment.” U.S.S.G. § 5G1.2(d). This was case here.
Consecutive sentences implemented the District Court’s
adjusted Guidelines range of 292 to 365 months’
imprisonment, reduced to the statutory maximum of 360
months. Given the latitude afforded to sentencing courts to
select concurrent or consecutive sentences, and the Guidelines’
directive that sentences “shall run consecutively to produce a
combined sentence equal to the total punishment,” U.S.S.G.
§ 5G1.2(d), the sentences here are not plainly erroneous.
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
23
A defendant is guilty of “genocide” when,
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
42
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
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[.]
18 U.S.C. § 1091(a).
24
Even assuming the District Court considered
Jabateh’s role in genocide, there would be no misapprehension
of fact constituting plain error. (See App. at 14–24, 26, 32
(noting efforts to “eliminate Krahn rivals”), 1391–93, 1394
(“The trial has overwhelmingly showed that the defendant
committed these acts purely, purely because of ethnic enmity,
political enmity, or religious enmity.”).) Jabateh’s denials of
43
III. CONCLUSION
For the above reasons, we will affirm Jabateh’s
conviction and sentence.
his role in both genocide and “the killing of any person because
of race, religion, nationality, ethnic origin or political opinion”
were gravely false. (App. at 75.)
44