The Question of Sentencing: When Immigration Charges are used to Convict War Criminals
On October 18, 2017, Liberian-national Mohammed “Jungle Jabbah” Jabbateh was convicted of four counts of fraud in immigration documents and perjury following a 10-day jury trial in the Eastern District of Pennsylvania (Philadelphia). Although the charges stemmed from false statements Jabbateh made to U.S. immigration officials when applying for asylum and lawful permanent residence, those false statements were the result of Jabbateh’s attempts to cover up unthinkable wartime atrocities that he committed as a high-ranking rebel commander during Liberia’s first civil war. Immigration-related charges are becoming the go-to prosecution strategy for war criminals caught in the U.S. as they are more readily applied to such cases than more serious human rights or war crimes statutes, which often have jurisdictional limitations. But while charging immigration violations creates an opening for prosecutors to hold perpetrators accountable where they might otherwise evade justice, doing so challenges conventional federal sentencing practices and pushes the question of sentencing for these cases into largely uncharted territory.
In order to determine an appropriate sentence, courts consider not only the statutory penalty for the crimes of conviction, but also the sentencing range suggested by the U.S. Sentencing Guidelines. The Guidelines take into account the unique circumstances of a defendant’s crime, the charges themselves, and a defendant’s criminal history to provide an advisory sentencing range tailored to the specifics of a particular case. Thus, while the statute sets the minimum and maximum penalty limits, the Guidelines advise where within that range the specifics of the defendant’s case might fall. Calculating the applicable Guidelines range is the first step in all sentencing proceedings. The court then has discretion to impose a sentence within the Guidelines or to deviate from its range if the court believes the Guidelines do not accurately reflect the defendant’s circumstances.
Jabbateh’s case is unique. Because he was convicted of immigration-related offenses and not war crimes, per se, the corresponding Guidelines recommendation for his immigration violations does not reflect the overall seriousness of Jabbateh’s acts. Jabbateh’s crimes in Liberia are necessary predicates to his immigration-based crimes of conviction, though, and should be considered in tandem for the purposes of sentencing. In cases such as this one, where the facts about which the defendant lied cannot be separated from the crimes of conviction, the gravity of what the defendant lied about should be reflected in the seriousness of the punishment. Jabbateh’s wartime acts are inextricably intertwined with his fraud and perjury conviction. They formed the basis of his lies to immigration officials. They also are the reason for his immigration benefit ineligibility. Finally, the fact that he had committed such horrific crimes was the motivation for Jabbateh to leave Liberia and seek refuge in the U.S., and thus the motivation for the crimes of conviction in the first place. These factors move Jabbateh’s case outside the heartland of standard immigration offenses and would seemingly justify a sentence outside the Guidelines range.
Cases like this are rare and there is little guidance to assist courts in determining how to calculate a sentence, how much weight to give crimes that took place in a home country for which the defendant was not specifically charged, or how to reconcile the seriousness of the immigration crimes of conviction with the seriousness of the underlying wartime acts. Traditional Guidelines calculations—the starting point and benchmark in federal sentencing—simply do not account for cases of this nature. Nor is there clear direction from precedent—due to both a scarcity of cases and a lack of uniform sentencing practices. In the few cases that have been heard, various U.S. courts around the country have taken widely different approaches to the penalty phase.
Some courts have rejected the Guidelines’ recommendations entirely and sentenced to the statutory maximum, even going so far as to have sentences for multiple counts run consecutively rather than concurrently.
- In 2013, following a 4-day jury trial in Colorado, Defendant Kefelegne Alemu Worku was convicted of unlawful procurement of U.S. citizenship or naturalization, aggravated identity theft, and fraud and misuse of visas. Although charged with immigration-related offenses, witnesses testified at trial that the defendant was a notorious Ethiopian official who had tortured and killed political prisoners opposed to his favored regime in Ethiopia during a period of violent political turmoil in the late 1970s. He subsequently fled Ethiopia, assumed a false identity, and sought refuge in the United States. After calculating the appropriate Guidelines range for Worku’s immigration offenses to be 0-6 months’ imprisonment followed by a consecutive, mandatory 2-year term of imprisonment, the court rejected the Guidelines’ recommendation in its entirety, reasoning that “it has no regard to the circumstances of this case.” Instead, the court sentenced the defendant to the statutory maximum for each count, to run consecutively, for a total of 22 years’ imprisonment.
- In 2013, following a 12-day jury trial in New Hampshire, Defendant Beatrice Munyenyezi was found guilty of two counts of unlawfully procuring U.S. citizenship. Trial testimony revealed that the defendant had concealed her involvement in the Rwandan genocide of 1994 and had participated in, aided and abetted, and encouraged persecution, kidnapping, and murder of a rival ethnic group. She later lied about those acts in order to obtain immigration and naturalization benefits in the U.S. Following her conviction, the defendant’s Guidelines range was calculated to be 0-6 months’ imprisonment. The court ultimately rejected the Guidelines’ recommendation and sentenced the defendant to the statutory maximum of 10 years’ imprisonment for each count, to run concurrently.
Other courts have adhered to the Guidelines’ recommendations even when they corresponded to short sentences.
- In 2012, following a jury trial in Massachusetts, Defendant Prudence Kantengwa was convicted of two counts of fraud and misuse of visa and other documents, three counts of perjury, and one count of obstruction of justice. The charges against Kantengwa stemmed from lies she told about her involvement in the 1994 Rwandan genocide, including her membership in the Hutu-dominated party in Rwanda, her husband's role as the director of Rwanda's internal security service, and her knowledge of the existence of a genocidal roadblock. Despite facing a maximum potential term of imprisonment of 40 years under the applicable statutes, the court sentenced the defendant within her Guidelines range and imposed a sentence of 21 months’ imprisonment.
Some courts have imposed an above-Guidelines sentence after determining that the Guidelines range did not adequately reflect the circumstances of the crime, but those sentences nevertheless fell far short of the statutory maximums.
- In 2009, Defendant Nedjo Ikonic was convicted of two counts of visa fraud following a guilty plea in a Wisconsin federal court. The defendant commanded a unit that participated in the capture and killing of hundreds of Bosnian prisoners in 1995. Ikonic obtained admission into the United States by fraudulently omitting his police service during the 1992-1995 conflict in Bosnia when applying to enter the United States. The charges potentially carried a statutory 20-year maximum sentence, but the defendant’s Guidelines range was 0-6 months’ imprisonment. The court ultimately sentenced Ikonic to 12 months’ imprisonment, above the Guidelines’ recommendation but far below the statutory maximum. Following the completion of that sentence, he was removed from the United States to Bosnia and Herzegovina, where he was taken into custody by officials from the Office of the Prosecutor of the Bosnian State Court War Crimes Chamber.
- In 2009, Defendant Carlos de Graca Lopes, a national of Cape Verde, pleaded guilty in a Massachusetts federal court to 13 counts of visa fraud, false statements and perjury. Lopes was formerly a prison warden in Cape Verde, but was dismissed from his position in 2006 after allegations surfaced that he abused and tortured prisoners. After an indictment was issued in Cape Verde for multiple criminal acts, including torture, Lopes fraudulently obtained a visa and fled to the United States. For his immigration-related crimes, he faced a Guidelines’ recommendation of 10-16 months’ imprisonment, but a substantially longer custody under the applicable statutes. He was sentenced to 36 months’ imprisonment, above the immigration-related Guidelines range but below the maximum allowable under the charged statutes.
- In 2006, Defendant Marko Boskic was convicted of two counts of visa fraud in federal court in Massachusetts following a jury trial. Although charged with immigration offenses, evidence showed that the defendant was directly involved in the military unit responsible for the killings of several hundred Bosnian Muslim men who were murdered in 1995 in Bosnia and Herzegovina and was personally responsible for the murders of several dozen of those prisoners. The defendant faced a statutory maximum of 20 years’ imprisonment but a Guidelines range of 8-14 months’ imprisonment based on the charged offenses. The court ultimately sentenced Boskic to an above-Guidelines sentence of 63 months’ imprisonment, which was still significantly below the statutory maximum. After serving his sentence, the defendant was removed back to Bosnia and Herzegovina, where he was subsequently taken into custody by officials from the Office of the Prosecutor for the Bosnian State Court War Crimes Chamber.
Given sentencing courts’ widely disparate approaches to sentencing for defendants charged with immigration crimes but who have an underlying history of human rights violations and/or are accused of war crimes or atrocities in their home countries, it is difficult to predict how Jabbateh’s sentencing will be treated. He faces up to 30 years’ imprisonment under the statutory maximums but, like most cases, his Guidelines range is significantly less. A variety of outcomes are possible:
- If the court sentences Jabbateh to the statutory maximum for each count and orders the terms to run consecutively, Jabbateh faces 30 years’ imprisonment.
- If the court sentences Jabbateh to the statutory maximum for each count and orders the terms to run concurrently, Jabbateh faces 10 years’ imprisonment.
- If the court sentences Jabbateh within his applicable Guidelines range, Jabbateh faces 57-71 months’ imprisonment.
- If the court rejects both the Guidelines’ recommendation and statutory maximums, it could impose any length of sentence between “time served” and 30 years’ imprisonment that the court deems fit.
Jabbateh’s sentencing is scheduled to take place on February 7, 2018.