United States Court of Appeals For the First Circuit

No. 19-2041

BEATRICE MUNYENYEZI,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges.

Richard Guerriero, with whom Lothstein Guerriero, PLLC, was on brief, for petitioner. Mark T. Quinlivan, Special Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, District of New Hampshire, and Andrew E. Lelling, United States Attorney, District of Massachusetts, were on brief, for respondent.

 Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to

(d). March 3, 2021 KAYATTA, Circuit Judge. Petitioner Beatrice Munyenyezi

was convicted of procuring naturalization based on false

statements to immigration officials about her conduct during the

Rwandan genocide, see

(a), and of procuring

naturalization as an ineligible person, see

§ 1425(b). Six

years ago, we affirmed her conviction and sentence. United States

v. Munyenyezi,

(1st Cir. 2015). Two years later, in

Maslenjak v. United States,

(2017), the Supreme

Court described the role that a falsehood need play in acquiring

citizenship to prove a violation of section 1425(a). Pointing to

differences between that description and the instructions given to

the jury in her case, Munyenyezi seeks vacatur of her conviction

through a petition for habeas corpus relief under

(a). Because Munyenyezi was not actually prejudiced by the

instructions as given, we affirm the district court's denial of

Munyenyezi's petition. Our reasoning follows.

I.

A detailed discussion of the background of this case,

including Munyenyezi's trial, appears in our above-cited opinion

affirming Munyenyezi's conviction and sentence on direct appeal.

We summarize that background briefly to provide relevant context

for our discussion in this post-conviction litigation.

This case arises out of the 1994 Rwandan genocide, during

which members of Rwanda's majority ethnic group, the Hutus, killed

- 3 - more than 700,000 Rwandans, mostly Tutsis, a minority ethnic group.

The killing occurred at the behest of Rwanda's ruling party, the

Hutu-dominated National Republican Movement for Democracy and

Development ("MRND"). The MRND, led by President Juvénal

Habyarimana, rose to power in 1973. President Habyarimana remained

in office until his assassination on April 6, 1994, an event that

brought Rwanda's long-running ethnic tensions to a head. MRND

leaders seized on the president's death as an opportunity to demand

violence against Tutsis. Members of the military, police, and the

Interahamwe, the MRND's youth militia, responded by carrying out

mass killings. Across Rwanda, local militias constructed

roadblocks where they checked passing Rwandans' identification

cards to determine their ethnicity. The militias detained Tutsis

and then abused, tortured, and killed them. The campaign to

eliminate Tutsis continued until July 1994.

On April 19, 1994, a speech by Rwanda's new president to

officials of the southern Rwandan city of Butare prompted a

systematic effort to hunt Tutsis in Butare using patrols and

roadblocks. One of those deadly roadblocks was on Butare's main

road in front of the Hotel Ihuriro.

The Hotel Ihuriro was home during the genocide for

Petitioner Beatrice Munyenyezi, her husband, and their young

child. Several facts about the occupants of the Hotel Ihuriro are

uncontested: Munyenyezi's husband, Shalom Ntahobali, was the son

- 4 - of the hotel's owners. Shalom's mother, Pauline Nyiramasuhuko,

was an MRND cabinet minister. His father, Maurice Ntahobali, was

a former politician and the head of the National University in

Butare. Shalom himself led Butare's Interahamwe militia, which

supervised the roadblock in front of the Hotel Ihuriro, and he

developed a reputation as a brutal murderer.

The dispute between the government and Munyenyezi

centers on what Munyenyezi herself did during the genocide and

whether she honestly described those actions to immigration

officials. Between 1995 and 2003, Munyenyezi successively and

successfully sought status as a refugee, which required a special

"Visa 6" security clearance; as a lawful permanent resident; and

then as a naturalized citizen of the United States. During this

lengthy march to citizenship, she submitted to formal interviews

and completed various application forms, including a questionnaire

specifically tailored for applicants who had been in Rwanda since

April 1, 1994 ("the Rwandan Questionnaire") and an application for

naturalization known as Form N-400.

Several years after her naturalization, Munyenyezi drew

the attention of United States officials when she testified on her

husband's behalf at an international criminal court, claiming that

there was no roadblock near her family's hotel and that her husband

was not involved in the genocide. Munyenyezi,

.

- 5 - After an investigation, the government concluded that Munyenyezi

made the following five false statements on her Form N-400:

One, in response to a question on her Form N-400 that asks, ["]have you ever . . . been a member of or associated with any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place,["] . . . [Munyenyezi] did not disclose her membership in and association with the MRND and Interahamwe, and she responded by putting an "X" in the box marked ["]no[."]

Two, in response to a question on her N-400 that asked, ["]have you ever persecuted, either directly or indirectly, any person because of race, religion, national origin, membership in a particular social group or political opinion,["] . . . [Munyenyezi] responded by putting an "X" in the box marked "no" and failed to disclose her direct and indirect persecution of Tutsis during the Rwandan genocide.

Three, in response to a question on her N-400 that asked, ["]have you ever committed a crime or offense for which you were not arrested,["] . . . [Munyenyezi] failed to disclose her participation in genocide, murder, rape, kidnapping, and theft, and responded by putting an "X" in the box marked "no." The government also alleges that [Munyenyezi] failed to disclose that she had previously violated United States criminal laws by providing false information in immigration interviews and documents, that is, the Form I-590, Form G-646, the Rwandan questionnaire, and Form I-485.

Four, in response to a question on her Form N- 400 that asked, ["]have you ever given false or misleading information to any U.S. official while applying for any immigration benefit or to prevent deportation, exclusion, or removal,["] . . . [Munyenyezi] responded by

- 6 - putting an "X" in the box marked "no" and failed to disclose false information she provided in previous [i]mmigration documents, that is, the Form I-590, Form G-646, the Rwandan questionnaire, and Form I-485.

Five, in response to a question on her N-400 that asked, ["]have you ever lied to any U.S. Government official to gain entry or admission into the United States,["] . . . [Munyenyezi] responded by putting an "X" in the box marked "no" and failed to disclose the false information she provided on the Form I-590, Form G-646, and the Rwandan questionnaire.

A federal grand jury indicted Munyenyezi. In count one,

the government alleged that Munyenyezi violated section 1425(a)

when she "knowingly procure[d] . . . her own naturalization

contrary to law . . . by knowingly providing false and fraudulent

information as to material facts in her . . . Form N-400." See

(a). In count two, the government alleged that

Munyenyezi was "not entitled" to naturalization because -- among

other reasons -- she gave materially false information during the

immigration process and that she violated section 1425(b) by

nevertheless "knowingly procur[ing] . . . [her] naturalization."

See

§ 1425(b).

The first jury to consider the evidence deadlocked,

necessitating a mistrial. Munyenyezi's retrial ended in her

conviction on both counts.

Numerous Rwandan witnesses testified during the

government's case-in-chief. At least four eyewitnesses testified

- 7 - that they saw Munyenyezi decked out in the MRND's distinctively

colored clothing, checking IDs and culling out Tutsis at the

roadblock. Munyenyezi,

. One of those eyewitnesses

reported that Munyenyezi gave orders to have several Tutsis killed.

Several immigration officials testified about how

statements disclosing this activity would have affected

Munyenyezi's various applications in her pursuit of eventual

naturalization. That testimony established that naturalization

would probably have been denied if she had admitted to

participating in persecution, to committing a crime such as

kidnapping for which she had not been arrested, or to helping the

Interahamwe check identification cards at the roadblock.

Government witnesses also explained how knowledge of MRND

membership would have cast serious doubt on her receipt of a Visa 6

security clearance and would have at least led to much more inquiry

that may well have resulted in a denial of her applications.

Following closing arguments, the trial judge instructed

the jury that the "government must prove each of the following

essential elements beyond a reasonable doubt" to establish a

violation of section 1425(a): "First, that the defendant procured

or attempted to procure United States citizenship. And second,

that it was contrary to the law for the defendant to procure such

citizenship. And third, that the defendant knowingly and

- 8 - intentionally provided materially false statements on her

Application for Naturalization, Form N-400."

The judge next explained that "[t]he government alleges

that the defendant procured United States citizenship [']contrary

to law['] because it claims she violated federal law which makes

it unlawful to give false material statements in connection with

procuring or attempting to procure immigration and naturalization

benefits."

The judge then explained to the jury that to find that

Munyenyezi violated section 1425(a), it had to "agree with regard

to which specific false statement or statements the government has

proved beyond a reasonable doubt" out of the five statements listed

above. And to find that the government proved the falsity of

statements four and five, the judge instructed that the jury had

to "agree as to at least one prior material false statement." On

appeal, both parties presume that the phrase "prior material false

statement" refers only to a false statement about the conduct

covered by statements one, two, or three.

The trial judge told the jury that 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 statement is "material" if the statement had a natural tendency to influence, or was capable of influencing, the decision of a government agency in making a determination

- 9 - required to be made. The government need not show that the agency was actually influenced by the statement involved. If a statement could have provoked governmental action, it is material regardless of whether the agency actually relied upon it.

After this court affirmed Munyenyezi's conviction and

sentence, she filed a timely habeas petition pursuant to

(a) seeking relief on several grounds. Her petition was

pending when the Supreme Court held in Maslenjak v. United States,

(2017), that the government must show "that an

illegality played some role in [the] acquisition" of citizenship

to prove a violation of section 1425(a).

. With the

district court's permission, Munyenyezi added a claim to her

section 2255 petition challenging the materiality instruction

based on Maslenjak.

The district court rejected the claims raised in her

initial section 2255 petition but did not address her Maslenjak

claim. Munyenyezi obtained a certificate of appealability from

this court as to the Maslenjak claim alone. After we remanded to

allow the district court to address the claim in the first

instance, the district court denied Munyenyezi's petition,

reasoning that any error in the jury instructions was harmless

beyond a reasonable doubt. Munyenyezi then filed this timely

appeal.

- 10 - II.

To prevail on the claim for relief under

(a), Munyenyezi need show that her sentence "was imposed in

violation of the Constitution or laws of the United States" or "is

otherwise subject to collateral attack."

(a).

Munyenyezi did not raise at trial the argument now advanced in her

post-conviction request for relief. So, to rule in her favor, we

would need to find not only that there was error in her trial, but

also that there was "cause" not to have objected to the error and

that "'actual prejudice' result[ed] from the error[]." United

States v. Frady,

, 167–68 (1982). As did the district

court, we put to one side the "cause" requirement -- and the

government's arguments on that issue and others -- to go right to

the question of whether, assuming error, there was actual prejudice

as a result of that error.

To ascertain prejudice, we first examine the precise

nature of the error said to have caused actual prejudice.

Munyenyezi directs our attention to the jury instruction

concerning the required relationship between a lie and the grant

of citizenship. Drawing on the notion of materiality, the trial

judge told the jurors that, in order to support a conviction, a

false statement must have "a natural tendency to influence, or

[be] capable of influencing, the decision" of an immigration

officer. The judge further explained that it is enough if the

- 11 - statement "could have provoked governmental action"; it need not

have "actually" done so.

Munyenyezi argues that that instruction was error

because it did not comport with what the Supreme Court subsequently

required in Maslenjak to show that a defendant "knowingly

procure[d] . . . , contrary to law, the naturalization of any

person."

(a). In Maslenjak, the trial court

instructed the jury that it could convict based on a finding that

the defendant lied in procuring naturalization even if the lie was

not "material" and "did not influence the decision to approve [her]

naturalization."

(alteration in original).

After the Sixth Circuit affirmed the conviction, see United States

v. Maslenjak,

(6th Cir. 2016), the Supreme Court

granted certiorari. It then vacated the Sixth Circuit's decision,

finding the instruction dispensing with any materiality

requirement improper. Maslenjak,

. In so

finding, the Supreme Court established what at first blush may

seem like a causation-in-fact requirement regarding the

relationship between an illegal act and naturalization. The Court

several times explained that an illegality must have "played some

role in" the acquisition of naturalization,

; that it "must have somehow contributed to the obtaining of

citizenship,"

; and that "a jury must decide . . .

whether a false statement sufficiently altered [the immigration]

- 12 - processes as to have influenced an award of citizenship,"

.

When homing in on section 1425(a)'s application to lies

to government officials, however, the Court made clear that the

government need not prove that a lie did in fact cause, contribute

to, or influence the award of citizenship. Rather, retreating

from notions of causation-in-fact, the Court explained that jurors

need not focus on the actual decisionmaker in the immigration

proceeding at issue. Indeed, "the question of what any individual

decisionmaker might have done with accurate information is beside

the point."

Instead, "the proper causal inquiry under

§ 1425(a) is framed in objective terms: To decide whether a

defendant acquired citizenship by means of a lie, a jury must

evaluate how knowledge of the real facts would have affected a

reasonable government official properly applying naturalization

law." Id. And in making those decisions, the jury can consider

whether a truthful response "would have prompted reasonable

officials . . . to undertake further investigation" that "'would

predictably have disclosed' some legal disqualification." Id. at

1929 (quoting Kungys v. United States,

(1988)).

The difference between what Maslenjak requires and the

instruction given in this case is subtle but substantive. Reduced

to its nub, Maslenjak requires proof that the truth would have

predictably led a reasonable official to deny the application,

- 13 - while the instruction here required that the government prove that

the truth could have had such an effect.

We will assume that this difference means the given

instruction was erroneous. As we have stated, we are also assuming

without deciding that there was due "cause" not to have challenged

the instruction at trial. So the pivotal question is whether the

error resulted in "actual prejudice." Brecht v. Abrahamson,

(1993) (quoting United States v. Lane,

(1986)).

Courts have tinkered with the words used to describe

exactly how one must ascertain "actual prejudice." Brecht pointed

to the formulation set forth in the Supreme Court's earlier

decision in Kotteakos: "whether the error 'had substantial and

injurious effect or influence in determining the jury's verdict.'"

Brecht,

(quoting Kotteakos v. United States,

(1946)). Kotteakos itself also stated that an error

can be overlooked as not causing actual prejudice if the reviewing

court "is sure that the error did not influence the jury, or had

but very slight effect." Kotteakos,

. Our circuit

in 1994 reasoned that under Brecht no actual prejudice is shown

"if it is 'highly probable' that the challenged action did not

affect the judgment." Singleton v. United States,

(1st Cir. 1994) (quoting United States v. Wood,

(1st Cir. 1991)) (applying Brecht to a section 2255 petition).

- 14 - A year later, the Supreme Court spoke of not having "grave doubt"

because one is convinced beyond "equipoise" that the error had not

"substantially influenced the jury's decision." O'Neal v.

McAninch,

, 435–36 (1995). And while we thereafter

continued to apply the Singleton formulation, see, e.g., Sustache-

Rivera v. United States,

(1st Cir. 2000),1 the

Supreme Court has more recently pointed us towards O'Neal's

formulation of the pertinent inquiry, see Davis v. Ayala,

(2015). That inquiry as formulated in O'Neal begins

by asking, "Do I, the judge, think that the error substantially

influenced the jury's decision?"

. If the answer

to that question is "yes," or if we are in "equipoise as to" the

answer, then the error is not harmless.

.2

With this inquiry in mind, we turn to Munyenyezi's

argument that there is much reason to think that the "could have

caused" (rather than "would have caused") instruction

substantially influenced the jury's decision. Munyenyezi contends

that we must consider this harmless error argument de novo in

reviewing the district court's denial of her habeas challenge to

1 The government asks us to do so again here. 2 We reject Munyenyezi's argument that we should apply a "beyond a reasonable doubt" test for harmlessness, as we might were this a review of a preserved claim of error on direct review. See Chapman v. California,

(1967); see also United States v. Maslenjak,

(6th Cir. 2019).

- 15 - her federal conviction, citing Pettiway v. Vose,

(1st Cir. 1996) ("Our review of a harmless error determination on

habeas corpus review is de novo."). The government offers no

objection or argument to the contrary, so we shall proceed with de

novo review.

Munyenyezi begins her argument by pointing out that the

jury's general verdict did not specify which of the challenged

statements it found to be false. Building on this ambiguity,

Munyenyezi constructs a two-part, "but-for" scenario that would

warrant habeas relief. First, she describes the jury's verdict as

likely resting on a finding that Munyenyezi's only false statement

was her denial of MRND membership. In so arguing, she implicitly

acknowledges that statements two3 and three,4 and part of one,5 if

false, would have obviously concealed information that would have

led to the denial of her various applications during the

naturalization process. And she presumes, as does the government,

3 In her second statement, Munyenyezi denied that she had "ever persecuted, either directly or indirectly, any person." 4 In her third statement, Munyenyezi denied that she had "ever committed a crime or offense for which [she was] not arrested." 5 By swearing that she had never "been a member of or associated with any organization, association, fund, foundation, party, club, society or similar group," Munyenyezi not only denied MRND membership but also Interahamwe membership in her first statement.

- 16 - that statements four6 and five7 could only be found to be false

based on a prior material false statement about activity addressed

in statements one, two, or three. Second, she predicts that a

differently instructed jury would have found that a lie limited to

denying MRND membership would not have played a role in her

successful pursuit of naturalization; i.e., learning of MRND

membership would not have caused reasonable officials to deny her

application or to undertake an investigation that predictably

would have led to its denial. Because we find unconvincing her

description of the likely basis for the guilty verdict,

Munyenyezi's argument fails at the first step.

Munyenyezi's description of the likely basis of the

jury's actual verdict cannot be squared with the trial record,

which reflects that the contest of proof and argument trained

overwhelmingly on two diametrically opposed, all-or-nothing

versions of Munyenyezi's conduct in Rwanda. The government's

witnesses testified that Munyenyezi was virtually all-in on the

genocide: She joined the MRND, wore its clothing, joined the

Interahamwe, and actually checked identity cards at the roadblock

6 In her fourth statement, Munyenyezi denied that she had "ever given false or misleading information to any U.S. official while applying for any immigration benefit or to prevent deportation, exclusion, or removal." 7 In her fifth statement, Munyenyezi denied that she had "ever lied to any U.S. Government official to gain entry or admission into the United States."

- 17 - to find Tutsi victims to be separated out for murder. Munyenyezi's

defense was an across-the-board denial and a claim that those

witnesses were lying. She put on expert testimony suggesting that

Rwandan witnesses tend to adhere to an "official narrative"

promoted by their government. Munyenyezi also called several

witnesses who spent time at the Hotel Ihuriro during the genocide.

According to them, Munyenyezi was always in the hotel caring for

her young child, and she wore loose-fitting maternity clothes, not

military fatigues or MRND clothing, because she was pregnant with

twins who were born on November 20, 1994 (more than seven months

after the genocide began).

The closing arguments reflect the all-or-nothing nature

of the case as presented to the jury. According to Munyenyezi's

counsel, the Rwandan genocide was an event "in which she had

absolutely no part." Moreover, Munyenyezi's counsel insisted that

"[s]he wasn't a member of the MRND" and that the witnesses who

said otherwise were "just wrong" and were "not telling the truth."

The government, in turn, stressed that Munyenyezi lied about

essentially everything to cover up her past. The all-or-nothing

approach by both sides was virtually compelled by the nature of

the evidence, which presented no readily apparent means for

concluding that the government witnesses were lying about

everything except MRND membership.

- 18 - Munyenyezi nevertheless points to the government's

statement in its closing argument that if "she told a single lie,"

she was guilty, and that "at a minimum she associated with the

MRND." This was an invitation to the jurors, claims Munyenyezi,

to find against her only on her denial of MRND membership and a

recognition by the government that its proof was not as strong on

the other issues. But in arguing that that lie was enough to

convict, the government never suggested that there was any path in

the record to find that that statement was false and the others

true. And even if the government's strongest claim was that

Munyenyezi lied about MRND membership, the fact remains that the

evidence pointing to across-the-board lying was strong unless one

labeled the government's witnesses as liars and Munyenyezi and her

witnesses as honest.

The district court characterized the record at the

second trial as "overwhelmingly establish[ing]" her participation

in murder. And on her direct appeal we described the record as

presenting a "vast and damning array of evidence against her."

Munyenyezi,

(holding that any error in admitting

into evidence Munyenyezi's international criminal court testimony

was harmless). On such a record, it is quite a stretch to think

that the jury found that she and her witnesses at trial lied only

by falsely denying her MRND membership yet told the truth

otherwise. The jury more likely viewed a lie about MRND membership

- 19 - as the thirteenth stroke of Thomas Hardy's crazy clock: "It was

not only received with utter incredulity as regarded itself, but

threw a doubt on all assurances that had preceded it." Thomas

Hardy, Far From the Madding Crowd 209–10 (First Vintage Classics

ed. 2015).8 For these reasons, we reject as implausible the premise

that Munyenyezi's conviction turned on a finding that she lied

only about her MRND membership. And with that premise rejected,

and causation inexorable as to the other alleged lies, we find

ourselves far past equipoise in answering "no" to the question of

whether the assumed Maslenjak error in the instruction

substantially influenced the jury's decision. See O'Neal, 513

U.S. at 435–36.9

III.

For the foregoing reasons, we affirm the denial of

Munyenyezi's petition for a writ of habeas corpus.

8 With thanks to Dwight H. Sullivan & Eugene R. Fidell, Winding (Back) the Crazy Clock,

, 401 (2016). 9 Because we agree with the government that Munyenyezi has failed to show actual prejudice, we decline to address the government's alternative argument that the concurrent sentence doctrine bars habeas relief here.

- 20 -