Immigration-related convictions, lengthy upward departure affirmed
US v. Worku, Docket No. 14-1218 (10th Cir. 9/1/15): The Court affirms the defendant's convictions and sentence for immigration-related convictions and aggravated identity theft. This is also a good case to review for the standards of determining whether photo arrays are unduly suggestive and thus violate Due Process rights.
Mr. Worku, an Ethiopian, entered the US years ago after assuming the identity of Mr. Temanu, an Eritrean. Mr. Worku eventually became a US citizen. Immigration authorities learned Mr. Worku was using a false identity and also suspected that he had tortured Ethiopian prisoners in the 1970s. After a trial, he was convicted of three crimes: 1)unlawful procurement of citizenship or naturalization; 2) fraud and misuse of visas, permits and other documents; and 3) aggravated identity theft. Mr. Work contended that his convictions under 18 USC 1425(a) and (b), in count 1, and 18 USC 1546(a), in count 2, violated the Double Jeopardy Clause. He was in plain-errorville. The Court shortcut the pesky double jeopardy analysis by assuming that Mr. Worku satisfied the first three prongs of the plain error test, and jumped straight to the prejudice prong. Mr. Worku could not prove prejudice because in the Court's view, the evidence of guilt would have been overwhelming even if the charges in the two counts had been more clearly identified with different acts. He had lied about his name on two different documents, the naturalization form and on the application for permanent residence. He also argued (again, plain error) that he shouldn't have been convicted of aggravated identity theft because Mr. Temanu's children gave Mr. Worku permission to use their father's identity. Mr. Worku did not allege that Mr. Temanu himself gave permission for Mr. Worku to use his identity. Thus, even if there was error, it was not obvious.
Mr. Worku was sentenced to 22 years, in part because the district court found that he immigrated to the US to conceal his involvement in torture. He contended the sentence was procedurally unreasonable because the record did not support that conclusion. The Court disagreed. There were three facts in the record to support the conclusion: 1. The jury found that Mr. Worku persecuted others because of race, etc. and lied about committing those crimes; 2. Mr. Worku said he had never felt at ease in Kenya because he feared being kidnapped and returned to Ethiopia; and 3. the Berhe children hired a broker who said Mr. Worku was to pay part of the broker's fee. These facts created a plausible inference Mr. Worku wanted to come to the US to avoid punishment for his crimes.
Mr. Worku also argued that his due process rights were violated because the federal agents showed photo arrays to former inmates of an Ethiopian prison camp, and five of them identified Mr. Worku as a torturer. He argued the arrays were unduly suggestive. The Court discussed the alleged problems with the 6- and 12-photo arrays, and concluded none were overly suggestive. Even if the arrays were overly suggestive, they were sufficiently reliable under the totality of the circumstances. Even though the witnesses had last seen Mr. Worku more than 30 years ago, the circumstances under which they saw him (torturing them) were also extraordinary.
The district court's upward variance from the guideline sentence of 3 years to 22 years was not an abuse of discretion. The district court concluded the guidelines range was too low because of the horrific nature of Mr. Worku's violations of human rights in Ethiopia and his lying about his idenitity to avoid punishment.
Mr. Worku, an Ethiopian, entered the US years ago after assuming the identity of Mr. Temanu, an Eritrean. Mr. Worku eventually became a US citizen. Immigration authorities learned Mr. Worku was using a false identity and also suspected that he had tortured Ethiopian prisoners in the 1970s. After a trial, he was convicted of three crimes: 1)unlawful procurement of citizenship or naturalization; 2) fraud and misuse of visas, permits and other documents; and 3) aggravated identity theft. Mr. Work contended that his convictions under 18 USC 1425(a) and (b), in count 1, and 18 USC 1546(a), in count 2, violated the Double Jeopardy Clause. He was in plain-errorville. The Court shortcut the pesky double jeopardy analysis by assuming that Mr. Worku satisfied the first three prongs of the plain error test, and jumped straight to the prejudice prong. Mr. Worku could not prove prejudice because in the Court's view, the evidence of guilt would have been overwhelming even if the charges in the two counts had been more clearly identified with different acts. He had lied about his name on two different documents, the naturalization form and on the application for permanent residence. He also argued (again, plain error) that he shouldn't have been convicted of aggravated identity theft because Mr. Temanu's children gave Mr. Worku permission to use their father's identity. Mr. Worku did not allege that Mr. Temanu himself gave permission for Mr. Worku to use his identity. Thus, even if there was error, it was not obvious.
Mr. Worku was sentenced to 22 years, in part because the district court found that he immigrated to the US to conceal his involvement in torture. He contended the sentence was procedurally unreasonable because the record did not support that conclusion. The Court disagreed. There were three facts in the record to support the conclusion: 1. The jury found that Mr. Worku persecuted others because of race, etc. and lied about committing those crimes; 2. Mr. Worku said he had never felt at ease in Kenya because he feared being kidnapped and returned to Ethiopia; and 3. the Berhe children hired a broker who said Mr. Worku was to pay part of the broker's fee. These facts created a plausible inference Mr. Worku wanted to come to the US to avoid punishment for his crimes.
Mr. Worku also argued that his due process rights were violated because the federal agents showed photo arrays to former inmates of an Ethiopian prison camp, and five of them identified Mr. Worku as a torturer. He argued the arrays were unduly suggestive. The Court discussed the alleged problems with the 6- and 12-photo arrays, and concluded none were overly suggestive. Even if the arrays were overly suggestive, they were sufficiently reliable under the totality of the circumstances. Even though the witnesses had last seen Mr. Worku more than 30 years ago, the circumstances under which they saw him (torturing them) were also extraordinary.
The district court's upward variance from the guideline sentence of 3 years to 22 years was not an abuse of discretion. The district court concluded the guidelines range was too low because of the horrific nature of Mr. Worku's violations of human rights in Ethiopia and his lying about his idenitity to avoid punishment.
posted by Anonymous at 10:47 AM
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