Court Rejects Claim That Rwandan Speech Restrictions Will Prevent Rwandan Witnesses in U.S. Perjury Trial "from Speaking Freely About the Genocide"

From Judge F. Dennis Saylor IV yesterday in U.S. v. Nshimiye (D. Mass.):

This is a criminal case arising out of a six-count indictment charging defendant Eric Tabaro Nshimiye with perjury, obstruction of justice, and knowingly concealing material facts in his application for refugee status in the United States.

Nshimiye has moved to dismiss the indictment, asserting that the Rwandan government and its restrictions on speech will prevent the witnesses from speaking freely about the genocide, rendering their testimony unreliable, and that admitting such testimony would violate his due-process rights…. He [also] contends that the government cannot establish that the statements alleged in Counts One and Three were knowingly false or material.

For the following reasons, the motion will be denied….

Eric Tabaro Nshimiye was born and raised in the Republic of Rwanda. He is a Hutu, which is the majority ethnic group in Rwanda. In April 1994, the Rwandan genocide targeting the country's Tutsi ethnic population began. At the time, Nshimiye was enrolled as a medical student at the University of Rwanda in Butare. The government alleges that Nshimiye was an active member of the Movement Revolutionaire National pour le Development ("MRND"), a group that committed genocidal acts in Rwanda in 1994. At some point in 1994 or 1995, Nshimiye fled Rwanda to Kenya.

In May 1995, he applied to become a refugee to the United States and was admitted in December 1995. He became a lawful permanent resident of the United States in 1998 and achieved United States citizenship status in 2003. The government alleges that he knowingly made false statements about his involvement in the Rwandan genocide at each stage of the immigration process.

In April 2019, Nshimiye was called to testify as a defense witness on behalf of Jean Leonard Teganya, his former University classmate and roommate. Teganya was charged with committing perjury and making false statements during immigration proceedings about his membership in the MRND and his actions during the Rwandan genocide. Nshimiye testified under oath before a federal jury….

In Count One, Nshimiye is charged with perjury for testifying that while he and Teganya were University roommates, Teganya did not wear a scarf or hat with MRND insignias. When asked about the apparel, he replied "I don't remember this type of hat," and replied in the negative to questions about Teganya displaying a MRND flag and attending political rallies during university. In Count Two, he is charged with perjury for denying that he lived in Butare during the genocide. When questioned under oath, he stated that "[he] was not in Butare," but rather in Kigali.

In Count Three, Nshimiye is charged with perjury for denying his own involvement in the MRND, including political rallies and trainings. He also denied wearing a scarf, hat, and lapel pin marked with MRND insignias and colors during his time at university. In Count Four, he is charged with perjury for denying his involvement in the genocide while under oath.

In Count Five, Nshimiye is charged with aiding and abetting the obstruction of justice under 18 U.S.C. §§ 1503 and 1502. The government contends that he knowingly concealed material evidence and testified falsely in Teganya….

The court rejected defendant's due process argument:

Defendant … contends that the Rwandan government's strict limitations on free speech, criminalization of political dissenters, and lack of judicial independence will spill over into this case and affect the willingness of the witnesses to speak openly for fear of mistreatment. According to defendant, this would make the testimony of any witness from Rwanda inherently unreliable, which is fundamentally unfair and interferes with his ability to present a defense. That argument falls short, among other reasons, because it does not establish the requisite state action required for a due-process violation.

Broadly, defendant alleges that this prosecution violates the Due Process Clause, which prohibits the federal government from depriving any person of life, liberty, or property without due process of law. To state a claim under the Fifth Amendment, a defendant must show government action that violates procedural or substantive due process.

Defendant alleges that the government is acting as an agent of the Rwandan government by coordinating with Rwandan authorities and making arrangements for witnesses to come to the United States. However, bringing in witnesses from abroad is a normal part of criminal cases. In fact, federal law authorizes cooperation with foreign authorities in gathering testimony.

Moreover, the alleged political influence of the Rwandan government over the witnesses does not constitute state action on the part of the U.S. government. The Due Process Clause applies to misconduct by the United States, not to actions by foreign governments or private actors. To state a due-process violation, a defendant must plausibly allege conduct attributable to U.S. officials, and even then, the bar is quite high. Dismissal is appropriate only where the government conduct is "so outrageous that due process principles would absolutely bar the government from invoking judicial processes." Defendant contends that the U.S. government worked with Rwandan authorities to bring witnesses to testify. But routine practices such as bringing in witnesses from abroad to testify, including international cooperation, do not meet the high bar for due-process violations….

In this case, there is no evidence in the record that the U.S. government has created or contributed to the conditions in Rwanda that defendant describes, interfered with witness testimony, or taken any action to suppress or improperly influence witness testimony. Nor is there any evidence that the U.S. government knowingly intends to call witnesses who will give false testimony. Without more, allegations concerning the reliability of witness testimony raise credibility and evidentiary issues that must be addressed at trial, not in a motion to dismiss.

As to the claims that the government couldn't show that the statements were false and material, the court reasoned:

Nshimiye contends that his testimony was (1) not knowingly false, because the questions concerned events from more than 25 years earlier, and (2) immaterial, because his statements were about trivial facts. When the elements of perjury, including knowledge and materiality, are in dispute, such determinations should be reserved for a jury. The Court cannot find as a matter of law that the statements were immaterial or that defendant could not have had the requisite intent. His arguments that his allegedly false statements reflected faulty memory, not intentional conduct, raise factual issues that are not properly resolved on a motion to dismiss….

Amanda Beck, Christopher R. Looney, and Jason A. Casey, all of the U.S. Attorney's Office (D. Mass.), represent the government.