United States v. Kantengwa

United States Court of Appeals
For the First Circuit

No. 12-2259

UNITED STATES OF AMERICA,

Appellee,

v.

PRUDENCE KANTENGWA, a/k/a Prudentienne Kantengwa,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

March 25, 2015
 LYNCH, Chief Judge. Prudence Kantengwa, also known as

Prudentienne Kantengwa, is a member of a prominent political family

allegedly involved in the Rwandan genocide. She appeals her

convictions for perjury and obstruction of justice based on false

statements she made in connection with her 2004 application for

asylum in the United States and subsequent removal proceedings.

See 18 U.S.C. §§ 1621(1), 1505. Those false statements concerned

(1) her truthfulness on previous immigration documents, in which

she had misrepresented her and her late husband's political

affiliations and government employment; and (2) the presence of a

roadblock outside Hotel Ihuriro (also known as "Hotel Ilhuliro")

during her stay there at the start of the genocide. Unlike her

sister, Beatrice Munyenyezi, whose case is also decided this day,

there is no evidence that Kantengwa participated in the genocide,

only that she "socialized and sympathized" with those who did, and

then sought to distance herself from it by lying. See United

States v. Munyenyezi, No. 13-1950 (1st Cir. Mar. 25, 2015).

Kantengwa challenges her convictions on numerous grounds,

all aimed at undermining the requisite findings that her statements

were material to the immigration judge's decision, and that there

was, in fact, a roadblock in front of Hotel Ihuriro while she was

there (such that her averments to the contrary were false). These

challenges are based on issue preclusion, sufficiency of the

evidence, the adequacy of the jury instructions, and evidentiary

-2-
decisions.1 We cannot say the district court committed any error

of law or abused its wide discretion. We affirm.

I.

A. Rwanda, The Genocidal Spring of 1994

Until civil war broke out in the spring of 1994,

Kantengwa lived with her family in Kigali, Rwanda. Her family was

politically active: She and her husband, Athanase Munyemana, were

both members of the then-ruling party, the National Republican

Movement for Democracy and Development ("MRND"). Munyemana worked

for the government in various senior capacities, including for the

Service Central de Renseignment and, after the Service Central de

Renseignment was decentralized, as head of its internal

intelligence division. Kantengwa, one of the few female lawyers in

Rwanda at the time, served as section chief of the automobile

1
Kantengwa also filed two pro se motions to dismiss counsel,
in which she argued that her convictions should be overturned on
the basis of ineffective assistance of counsel. We make no
judgment as to the merits of these claims. Our case law is well
settled that review of fact-specific claims of ineffective
assistance of counsel is not appropriate on direct appeal. See
United States v. Vázquez-Larrauri, 778 F.3d 276, 293-94 (1st Cir.
2015) (declining to review ineffective assistance of counsel claim
on direct appeal "[b]ecause we can only speculate based on this
record as to why counsel acted as he did" (citation and internal
quotation marks omitted)). This is in part to allow defendants
like Kantengwa to more fully develop a record on their claims in
the district court. See United States v. Mala, 7 F.3d 1058, 1063
(1st Cir. 1993) (noting that this "rule has a prudential aspect").

-3-
insurance section of the parastatal national insurance company,

Sonarwa.2

The killings began shortly after President Habyarimana's

plane was shot down on April 6, 1994, throwing Rwanda into turmoil

and sparking the three-month genocide that would claim the lives of

700,000 to 800,000 Rwandans.3 Six days later, on April 12, 1994,

Kantengwa left Kigali with Munyemana and their children in a

military escort and made a harrowing journey to Butare to stay with

Kantengwa's sister, Munyenyezi, at Hotel Ihuriro. Munyemana left

after one night to join the new government elsewhere. Kantengwa

and her children would remain at the hotel for about six weeks,

through the end of May 1994.

The genocide was conducted by the party to which

Kantengwa and her family belonged. It began with mass slaughters

of Tutsis and moderate Hutus in central locations; later, the

genocide's perpetrators would use patrols and roadblocks to weed

out and kill survivors. The Service de Renseignment, with whom

Munyemana held a senior position, was one of the organizations

involved in committing the genocide, and many senior members of the

MRND were implicated.

2
Parastatal organizations are state-funded companies whose
top executives are appointed by the state, but that still enjoy
some independence and are not formally part of the government.
3
Testimony at trial indicates that scholars still do not
know who shot down President Habyarimana's plane.

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 During the first two weeks of the genocide, the people of

Butare had largely resisted becoming involved. But on April 19,

1994, the new Rwandan president, Theodore Sindikubwabo, came to

Butare and gave a speech that made clear that those who did not

support his new regime would be targeted. Those loyal to the new

regime, who had already been laying the groundwork for the

genocide, responded to the call to action and set up numerous

roadblocks.

Among those loyal to the regime were Kantengwa's in-laws

and hosts at Hotel Ihuriro: Pauline Nyiramasuhuko, the hotel's

owner, and her son, Shalom Ntahobali, who was married to

Kantengwa's sister. Dr. Timothy Longman, a professor of political

science and an expert on the Rwandan genocide, testified that Hotel

Ihuriro is believed to have been the site of one of the more

notorious roadblocks that was set up following President

Sindikubwabo's speech. The jury found that this roadblock at Hotel

Ihuriro was in place by the time Kantengwa left Hotel Ihuriro in

late May, and so her statements that there was no roadblock while

she was there were false.

Although there is no evidence that Kantengwa participated

in the genocide or at the roadblock, she lived, socialized, and

sympathized with those who did. For example, her brother-in-law,

Shalom Ntahobali, led the Interahamwe militia in creating the

roadblock, and the participation of Kantengwa's sister, Munyenyezi,

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in the roadblock is the subject of another appeal before this

court. See United States v. Munyenyezi, No. 13-1950 (1st Cir. Mar.

25, 2015). Kantengwa's attempts to distance herself from this

history while immigrating to the United States form the basis of

her convictions and this appeal.

B. Visa & Asylum Applications to the United States

Kantengwa and her family left Rwanda in July 1994 when

the opposition gained control of the country, eventually arriving

in Kenya. Beginning in 1995, Kantengwa made several unsuccessful

attempts to gain admission to the United States.4 But on September

5, 2001, Kantengwa finally received conditional approval for a non-

immigrant visa, subject to her completion of a U.S. Department of

State security advisory opinion known as the "Rwanda

Questionnaire."

The Rwanda Questionnaire assists the U.S. Department of

State in screening out genocide participants seeking refuge in the

United States. All Rwandan applicants living outside Rwanda were

required to complete the questionnaire to obtain non-immigrant

visas. The State Department used the questionnaire to identify

applicants with relevant personal or family ties to political and

4
Her 1995 application for admission as a refugee was denied
because she had been unable to show past persecution or a well-
grounded fear of future persecution. Three subsequent attempts to
obtain non-immigrant visas, beginning in September 2000, were also
denied.
Munyemana's application was terminated when he died in late
February 1995.

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governmental organizations that were implicated in the genocide,

including the MRND and Service de Renseignment. Under department

policy, applicants who had such personal or family ties required

further investigation to ensure that they were not personally

implicated.

In completing the Rwanda Questionnaire, Kantengwa

answered two questions falsely. The first concerned whether she or

any immediate family member was ever a member of several specified

organizations, including the Service de Renseignment (for which her

husband had worked). The second concerned whether she or any

immediate family member was ever a member of a political party,

including the MRND (of which she was once a member). Kantengwa

responded "No" to both questions. The Department of State approved

her application, and she received her visa on March 4, 2002. She

subsequently made two brief visits to the United States to speak at

a conference and to visit family.

Kantengwa last entered the United States on January 29,

2004, and applied for asylum on March 8, 2004. She was referred to

removal proceedings on March 3, 2005 for having overstayed her

visa.

Kantengwa conceded removability for having remained past

her authorized visit, but sought relief from removal, again in the

form of asylum, as well as in the form of withholding of removal,

protection under the Convention Against Torture, and, in the

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alternative, voluntary departure. The Boston Immigration Court

held six testimonial hearings for the adjudication of these claims.

On July 21, 2009,5 the immigration judge granted Kantengwa's

applications for asylum and withholding of removal, and so did not

reach her requests for protection under the Convention Against

Torture or for voluntary departure. The Board of Immigration

Appeals affirmed on June 14, 2010, and later denied the

government's motion for reconsideration. Kantengwa's perjury

convictions are based on statements she made during these removal

proceedings.

C. Procedural History

On December 18, 2008, the grand jury returned a fifteen-

count indictment charging Kantengwa with fraud and misuse of visas,

permits, and other documents; perjury; and obstruction of

proceedings before departments and agencies. See 18 U.S.C

§§ 1546(a), 1621(1), 1505. The government voluntarily dismissed

six of these.

At trial, the government offered evidence of Kantengwa's

political membership and affiliations, the history of the Rwandan

genocide, and direct testimony from one witness about the

5
The opinion of the immigration judge indicates that there
were "substantial delays" between these hearings. These delays
were requested by the parties to accommodate Kantengwa's testimony
as a defense witness before the International Criminal Tribunal for
Rwanda ("ICTR"), to obtain and present additional evidence, and to
resolve an investigation into a potential breach of Kantengwa's
confidentiality protections under 8 C.F.R. § 1208.6(a).

-8-
roadblocks in Butare. The government also offered satellite images

of Butare from late May and early June 1994 through an intelligence

officer who explained how to interpret them to recognize cars,

obstructions, buildings, and groups of people. The evidence of the

existence and timing of the roadblock at Hotel Ihuriro was offered

through one eyewitness, Augustin Iyamuremye, the satellite images,

and Dr. Timothy Longman, an expert on the Rwandan genocide.

The government also presented evidence about the various

relevant immigration processes. Four officials who worked with the

U.S. Citizenship and Immigration Services ("USCIS") or the

Department of State offered testimony about the visa and asylum

process, procedures for identifying applicants implicated in the

genocide, and various bars to admissibility. The jury also

received an excerpted transcript of the asylum hearings containing

the charged perjurious testimony and context. The jury did not

receive the immigration judge's written opinion,6 or any direct

evidence of the standards governing the removal proceedings in

which the asylum claim was adjudicated.

The jury convicted Kantengwa on most counts. Kantengwa

was found guilty of both counts of fraud and misuse of visas,

permits, and other documents under 18 U.S.C. § 1546(a). The basis

for conviction on Count 1 was Kantengwa's false answers on the

6
Kantengwa attempted to submit a redacted version of the
opinion into evidence, but the district court excluded it as
hearsay.

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Rwanda Questionnaire in her 2001 visa application about her and her

family's political and governmental affiliations. The basis for

conviction on Count 2 was Kantengwa's false answer on her 2004

asylum application that she had not committed any crimes, despite

having committed fraud in her visa application.

The jury also convicted her on three perjury counts:7

Count 3, based on her false answers at the August 24, 2006 removal

hearing that she had been truthful in all her immigration

documents; Count 11, based on her assertion at her June 20, 2007

removal hearing that there was no roadblock at Hotel Ihuriro while

she was there; and Count 13, based on a similar assertion about the

roadblock she made at her May 16, 2008 removal hearing.

Finally, the jury convicted Kantengwa of obstruction of

proceedings before departments and agencies under 18 U.S.C. § 1505

on the same bases as her perjury convictions.

Kantengwa appeals her convictions for perjury and

obstruction of proceedings, but not her convictions for fraud and

misuse of visas, permits, and other documents.8

7
The jury acquitted Kantengwa on the three counts of perjury
under 18 U.S.C. § 1621(1) that were based on her statements to the
immigration judge about the extent of her and her husband's
political affiliations at various times after 1991.
8
In her two pro se motions to dismiss counsel, Kantengwa
argued that her convictions on Count 1 and Count 2 for fraud and
misuse of visas, permits, and other documents should be overturned
and that counsel should have appealed them. Kantengwa's pro se
arguments for overturning the convictions on these counts lack
merit. We make no judgment as to whether appellate counsel's

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 II.

Kantengwa first argues that her convictions should be

overturned and the charges dismissed as barred by the doctrine of

issue preclusion. She argues that her removal proceedings resolved

both (1) that her inconsistencies were not material, and (2) that

her statements concerning the roadblock were not false.

Accordingly, she contends, the government is barred from re-

litigating these issues, and the perjury charges (but not her

obstruction charges) should have been dismissed.

We review de novo the district court's denial of a motion

to dismiss on grounds of collateral estoppel. See United States v.

Lanoue, 137 F.3d 656, 661 (1st Cir. 1998). Although it is far from

clear that an administrative finding of fact can preclude later

criminal charges,9 we do not reach the broader issue. Collateral

refusal to appeal these convictions constitutes ineffective
assistance of counsel, because review of such claims is not
appropriate on direct appeal. See Vázquez-Larrauri, 778 F.3d at
293-94.
9
See, e.g., United States v. Bustamante, 248 F. App'x 763,
764 (8th Cir. 2007) (per curiam) ("A finding by an administrative
law judge [in general] does not preclude a subsequent related
criminal prosecution."); United States v. Payne, 2 F.3d 706, 710
(6th Cir. 1993) (per curiam) (holding that proceedings enforcing
Postal Service's regulations do not collaterally estop the
government in criminal prosecutions); see also United States v.
Alexander, 743 F.2d 472, 477 (7th Cir. 1984) (suggesting that
permitting collateral estoppel of criminal prosecutions based on
administrative decisions may subvert the purpose of administrative
adjudication of "provid[ing] an informal and expeditious
adjudicatory setting" for regulatory enforcement, undermine the
cost-savings of such a system, or distort incentives for when and
how to pursue such proceedings).

-11-
estoppel does not apply, in any event, on the facts of this case.

Cf. United States v. Rodriguez-Estrada, 877 F.2d 153, 157 (1st Cir.

1989) ("[W]e are reluctant to strain to find an estoppel where one

side in a criminal case seeks to control the course of the

prosecution by reference to an earlier civil case." (citing

Standefer v. United States, 447 U.S. 10, 24-25 (1980))).

A. Issue Preclusion as to Materiality

Contrary to Kantengwa's assertions, the immigration

judge's decision that her false statements did not "go to the

heart" of her asylum claim is not a finding as to the materiality

of those false statements under the criminal statute of

prosecution, 18 U.S.C. § 1621(1).10 The two are distinct standards.

The "heart of the matter" rule from immigration law prohibits

basing an adverse credibility determination "on inconsistencies in

an applicant's testimony that do not go to the heart of [her]

claim." Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012). By

contrast, a statement is material in a criminal prosecution for

perjury under § 1621(1) if it is "material to any proper matter of

the [decisionmaker's] inquiry." United States v. Scivola, 766 F.2d

10
The "heart of the matter" rule applied to Kantengwa's
asylum application because she filed before May 11, 2005. See
Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012). This rule has
been superseded by the REAL ID Act, which permits consideration of
inconsistencies "without regard to whether [the] inconsistency
. . . goes to the heart of the applicant's claim" for applications
filed on or after May 11, 2005. See id. (alteration in original)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (internal quotation marks
omitted) (citing 8 U.S.C. § 1231(b)(3)(C)).

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37, 44 (1st Cir. 1985) (emphasis added); see also United States v.

Moreno Morales, 815 F.2d 725, 747 (1st Cir. 1987) (applying Scivola

to 18 U.S.C. § 1621).

The immigration judge's conclusion that Kantengwa's

misrepresentations did not go to the heart of her claim was limited

to the finding that such inconsistencies did not "provide specific

and cogent reasons to conclude that [Kantengwa]'s testimony was

incredible with regard to" the grounds of her fear of future

persecution, Ying Jin Lin v. Holder, 561 F.3d 68, 72 (1st Cir.

2009), namely, that the government would target her based on her

relationship to her late husband (who some believe left her

incriminating files) and to her brother (a "well-known member of

the opposition").

Indeed, far from deciding that Kantengwa's

misrepresentations were immaterial, the immigration judge

specifically found that Kantengwa's misrepresentations were

material as "adverse factors" counting against granting asylum.

That these inconsistencies were not dispositive of the asylum claim

-- that, in the words of the immigration judge, a "discretionary

denial based on [them] alone [would be] inappropriate" -- does not

mean that they were not "capable of influencing . . . the decision

of the decisionmaking body." United States v. Gaudin, 515 U.S.

506, 509 (1995); see also United States v. Birrell, 470 F.2d 113,

115 n.1 (2d Cir. 1972) ("[A] mistatement of fact does not need to

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be dispositive of the inquiry in question to be 'material' within

the meaning of § 1621."). Kantengwa's removal proceedings cannot

bar the government from litigating materiality in a later criminal

proceeding because those removal proceedings did not resolve the

materiality issue.

B. Issue Preclusion as to Falsity of Roadblock Testimony

The immigration judge's determination that the government

failed to "conclusively establish" that there was a roadblock

outside Hotel Ihuriro during the relevant period also does not

provide a basis for issue preclusion in the later criminal

proceeding.

Collateral estoppel applies only where the "previously

decided issues . . . were 'essential to the [earlier] judgment.'"

United States v. Ledée, 772 F.3d 21, 31 (1st Cir. 2014) (second

alteration in original) (quoting Ríos-Piñeiro v. United States, 713

F.3d 688, 692 (1st Cir. 2013)). The immigration judge expressly

stated that the truthfulness of Kantengwa's claim about the

roadblock did not affect her finding that Kantengwa's "testimony

concerning matters central to her claim [for asylum] necessarily

overcomes an adverse credibility finding."

III.

We turn to Kantengwa's arguments that the government

failed to establish the materiality of her lies in any event:

first, her argument that there was insufficient evidence of

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materiality, and, second, that there was reversible error in the

jury instructions.

Both arguments center on the lack of "direct evidence

about the [legal] standards the [immigration judge] employed in

adjudicating her asylum claim." Kantengwa argues that, without

such direct evidence, there was insufficient evidence for the jury

to find her false statements were material to the immigration

judge's decision because they lacked the information necessary to

draw conclusions about what that decision was. See Gaudin, 515

U.S. at 512. In the alternative, she argues that the failure to

include these standards in the jury instructions made the

instructions misleading, and that this error was not harmless.

"The two analyses differ," though here the outcomes do not. See

United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008).

A. Sufficiency of Evidence as to Materiality

A statement is material under § 1621(1) "if it is

'capable of influencing the tribunal on the issue before it.'"

Scivola, 766 F.2d at 44 (quoting United States v. Giarratano, 622

F.2d 153, 156 (5th Cir. 1980)) (discussing materiality under 18

U.S.C. § 1623); see also Moreno Morales, 815 F.2d at 747 (applying

Scivola to 18 U.S.C. § 1621).

This test "is a broad one." Scivola, 766 F.2d at 44.

"The statement need not be material to any particular issue in the

case, but rather may be material to any proper matter of the

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[decisionmaker]'s inquiry . . . ." Id. (suggesting that this

"includ[es] the issue of credibility"). Nor must the statement be

dispositive; it is enough that the false statement has the ability

to influence the decision or function of the trier of fact, even if

it is unsuccessful in doing so. See Birrell, 470 F.2d at 115 n.1.

The scope of what is material varies with context. That

scope is particularly broad where the decisionmaker can direct or

pursue specific lines of inquiry in response to the defendant's

statements. See United States v. Guariglia, 962 F.2d 160, 163-64

(2d Cir. 1992) (discussing the difference in the materiality

standard between "investigative setting[s]" and the "trial

context").11 This follows from the definition of materiality: the

body of statements that are capable of influencing a decisionmaker

in the exercise of her function will depend, in part, on what that

function is. Cf. United States v. Newell, 658 F.3d 1, 17 (1st Cir.

2011) (discussing materiality in terms of its ability to affect or

influence a government "function").

The scope of what a jury could find material to these

removal proceedings is broad. This is in part because an

11
Compare, e.g., United States v. Nazzaro, 889 F.2d 1158,
1165 (1st Cir. 1989) (holding that, in light of the "wide-ranging
investigative function reserved to grand juries, courts must
indulge comparable breadth in construing . . . materiality" (citing
Moreno Morales, 815 F.2d at 747)), with Guariglia, 962 F.2d at 163-
64 (holding that "the materiality of false trial testimony" before
a petit jury depends on its "impact on the factfinder's ultimate
verdict," not on "whether the false testimony hinders further
inquiry").

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immigration judge has discretion as to relief. Even where an

applicant otherwise satisfies the requirements for asylum, an

immigration judge may deny relief based on a balancing of various

"adverse factors," including fraudulently obtaining immigration

benefits. See Matter of Pula, 19 I. & N. Dec. 467, 472-75 (B.I.A.

1987) (holding that an immigration judge must consider the

seriousness of adverse factors in exercising discretion),

superseded in part by statute on other grounds as stated in

Andriasian v. I.N.S., 180 F.3d 1033, 1043-44 & n.17 (9th Cir.

1999).

The scope of materiality is also broad for removal

proceedings because the immigration judge has a relatively active

role in seeking the information she needs to make her decision. In

particular, the immigration judge may "elicit testimony" that

guides the proceedings, and base her decisions about what lines the

parties may pursue on the answers to questions. Cf. United States

v. Nazzaro, 889 F.2d 1158, 1165 (1st Cir. 1989) (noting the grand

jury's ability to "appropriately elicit testimony"). That is, the

function of the immigration judge is not limited to deciding the

ultimate issue (even where she has no discretion as to relief), but

includes subsidiary decisions governing the scope of the

proceedings. Cf. United States v. Doulin, 538 F.2d 466, 470 (2d

Cir. 1976) ("A conviction under § 1623 [criminalizing '[f]alse

declarations before [a] grand jury or court'] may . . . be

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sustained upon a showing that a truthful answer to the grand jury's

question could conceivably have furthered its inquiry by providing

'an evidentiary stone in the larger edifice.'" (quoting United

States v. Mancuso, 485 F.2d 275, 283 (2d Cir. 1973))).

In light of the standards governing Kantengwa's removal

proceedings, the false statements at issue could have been material

in at least five different ways: to deciding the ultimate issue of

whether discretionary relief is warranted; to determining whether

Kantengwa was barred from relief for the persecution of others; to

considering whether her use of fraud to enter the country warrants

a discretionary denial; to making the threshold determination of

credibility; and to guiding the relevant lines of inquiry. See

generally 8 U.S.C. § 1158 (governing asylum relief); see also 8

U.S.C. § 1158(b)(2)(A)(i) ("Persecutor's Bar") (stating that asylum

relief "shall not apply" to those who "participated in the

persecution" of others); Matter of Pula, 19 I. & N. Dec. at 472-75.

The jury is responsible for deciding whether her false

statements were material to any of these issues. See Gaudin, 515

U.S. at 523. The government need not show that the immigration

judge actually found them material, see United States v. Edgar, 82

F.3d 499, 510 (1st Cir. 1996), or that the immigration judge's

decision would have differed had truthful answers been given, see

United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005). For

example, the government did not need to show that the persecutor

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bar would have applied had Kantengwa not lied about the roadblock,

only that those lies were material to the determination of whether

it did. See Birrell, 470 F.2d at 115 n.1 (noting that a material

statement need not be dispositive). Finally, it is enough that the

government present sufficient evidence for the jury to find a

statement material to any one of these issues; the government need

not pursue them all or present evidence for the jury to understand

all of these issues. See Scivola, 766 F.2d at 44 ("The statement

need not be material to any particular issue . . . , [but] may be

material to any proper matter of the [decisionmaker]'s

inquiry . . . ." (emphasis added)); see also Silveira, 426 F.3d at

518.

B. The Evidence Supporting Materiality

With these standards in mind, it is clear that the

government's evidence of materiality was sufficient.

Our review is de novo. United States v. Conley, 186 F.3d

7, 19 (1st Cir. 1999). When examining sufficiency of the

evidence,12 we view the evidence in the light most favorable to the

jury's verdict, and "resolve all credibility disputes in the

verdict's favor." Id. (quoting United States v. Taylor, 54 F.3d

967, 974 (1st Cir. 1995)). We then ask whether, based on the

12
"To be precise," Kantengwa claims the district court erred
in denying her Rule 29 motion for a judgment of acquittal. See
United States v. Marin, 523 F.3d 24, 27 n.3 (1st Cir. 2008). "For
our purposes, there is no analytical distinction." Id. (citing
United States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000)).

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evidence so viewed, "a rational factfinder could find that the

government proved the essential elements of its case beyond a

reasonable doubt." Godin, 534 F.3d at 61 (quoting United States v.

Marin, 523 F.3d 24, 27 (1st Cir. 2008)) (internal quotation marks

omitted). "Defendants challenging convictions for insufficiency of

evidence face an uphill battle on appeal." United States v.

Hernández, 218 F.3d 58, 64 (1st Cir. 2000).

The record establishes that the evidence provided the

jury with an adequate understanding of the issues before the

immigration judge and the role of the immigration judge in the

proceedings so as to analyze materiality. Cf. United States v.

Moore, 612 F.3d 698, 702 (D.C. Cir. 2010) (holding evidence

sufficient to find materiality despite absence of "evidence

[introduced] specifically for the purpose of establishing . . .

materiality").

The government provided evidence about the basic

decisions facing the immigration judge through the testimony of

Dorothy Michaud, the Boston Director of USCIS. The jury heard

that, to obtain asylum, an applicant must show that she fears

persecution in her home country on the basis of one of five

protected grounds, and that she is not otherwise barred from

admission.13 The jury also learned that there are factors that may

13
Kantengwa suggests that this testimony was inapposite
because Michaud presented much of this information in discussing
refugee status. Her argument is unavailing. Michaud made clear

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render an applicant ineligible for admission even if the applicant

satisfies the other requirements for asylum relief, and that one

was relevant: having assisted in the persecution of others. The

jury heard testimony about what information was relevant to these

determinations, and how such information should frame what is asked

of the applicant. Finally, that the immigration judge could and

did ask follow-up and clarification questions was evident in the

excerpted transcript the jury received.

It is not a reach to conclude that Kantengwa's lies about

the roadblock, alleged in Counts 11 and 13, were material to the

immigration judge's decision about the persecutor's bar. At the

very least, the jury could conclude that this lie would have a

natural tendency to cut off important lines of inquiry about the

roadblock, about her relationship with those involved, and about

what did or did not happen at the roadblock (including her

participation, if any), that are directly relevant to ensuring that

that these standards also apply to asylum.
This testimony is also not undermined by Michaud's expressed
uncertainty as to the exact legal standards governing removal
proceedings in immigration court. Michaud confirmed that the
definition of asylum (including bars to admissibility) that she
used as a USCIS officer to process affirmative asylum applications
was the same definition used by immigration judges to adjudicate
defensive asylum claims during removal hearings in immigration
court. This was sufficient for the jury to understand the
essential point: the immigration judge needed to decide whether
Kantengwa was barred from remaining. See Gaudin, 515 U.S. at 512
(noting that the jury must first determine the decisions to be
made).

-21-
she was not implicated in the genocide.14 What is more, the jury

had direct evidence that Kantengwa's false statements about the

roadblock not only had this tendency, but actually did cause the

immigration judge to prevent government counsel from pursuing these

questions.

The evidence was also sufficient to conclude that

Kantengwa's false statements alleged in Count 3, that she had been

truthful in her asylum application and all other documents, were

material to the persecutor bar. The jury heard testimony about how

even seemingly insignificant details, like family ties or travel

history, could raise "red flags" about an applicant's implication

in the genocide. But these were the very details that had formed

the basis of Kantengwa's visa fraud: her membership in the MRND,

and her husband's role in the Service de Renseignment, both

organizations implicated in the genocide. A jury could easily find

that lying about having committed visa fraud, where the purpose of

that fraud was to conceal these "red flags," was material to the

persecutor bar.

We cannot conclude that this evidence, "viewed in the

light most favorable to the government, could not have persuaded

14
Kantengwa does not argue, and so we need not decide,
whether a statement that cuts off lines of inquiry is material only
if a truthful answer would have led to further "fruitful"
investigation. See United States v. Freedman, 445 F.2d 1220, 1226-
27 (2d Cir. 1971). We are doubtful it would make a difference in
any event, assuming that "fruitful" is properly defined.

-22-
any trier of fact of [Kantengwa]'s guilt beyond a reasonable

doubt." Hernández, 218 F.3d at 64 (citations and internal

quotation marks omitted). And so, we must affirm the district

court's denial of Kantengwa's Rule 29 motion. Id.

C. Jury Instructions on Materiality

We review "claims of instructional error 'under a two-

tiered standard: we consider de novo whether an instruction

embodied an error of law, but we review for abuse of discretion

whether the instructions adequately explained the law or whether

they tended to confuse or mislead the jury on the controlling

issues.'" United States v. Symonevich, 688 F.3d 12, 24 (1st Cir.

2012) (quoting United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir.

2010)) (internal quotation marks omitted). "The district court's

refusal to give a particular instruction constitutes error only if

the requested instruction was (1) correct as a matter of

substantive law, (2) not substantially incorporated into the charge

as rendered, and (3) integral to an important point in the case."

Id. (citing United States v. Mercado, 412 F.3d 243, 251 (1st Cir.

2005)). We review Kantengwa's preserved claims of error for

harmlessness, but apply plain error review to claims not preserved.

See id.; Estate of Keatinge v. Biddle, 316 F.3d 7, 16 (1st Cir.

2002).

We begin with her preserved claims of error. Kantengwa

objected that the district court's jury instructions concerning

-23-
materiality were inadequate because (1) the instructions did not

describe the legal standards applicable to her removal proceedings,

and (2) the instructions erroneously stated that a statement "need

not have been related to the primary subject matter" to be

material.15 Kantengwa preserved these objections by submitting

15
The instructions given read, in relevant part (challenged
language emphasized):

With respect to the final element of
perjury, you must find beyond a reasonable
doubt that the false statement under
consideration was material to the proceeding
in connection with which the statement was
made. A statement is "material," again, if it
had a natural tendency to influence the
tribunal before which it was made, in this
case the Immigration Court hearing Ms.
Kantengwa's asylum claim. Materiality is
demonstrated if a truthful statement could aid
a court's inquiry, or if a false statement
could hinder it.
The statement need not have actually
influenced the court, and need not have been
related to the primary subject matter of the
proceeding in order to be material. Rather,
the statement may be material if it pertained
to any proper subject matter of the court's
inquiry, including the issue of credibility.
The government need not prove that the false
or misleading information would have resulted
in a denial of Ms. Kantengwa's asylum claim,
but rather that the disclosure of the fact
would have likely influenced the Immigration
Court's actions in some material way.
Materiality is measured by an objective
standard. The question is not whether the
Immigration Judge subjectively considered the
false statements to be material, but whether
the statements themselves had a natural
tendency or potential to influence the Court.

-24-
alternative jury instructions that, she argued, addressed these two

issues.16 The district court rejected her proposed instructions.

16
Kantengwa's proposed jury instructions on materiality,
which were rejected, read (citations omitted):

You have been instructed that to find
Kantengwa guilty you must find that the false
statement was material to the decision that
the decisionmaker was trying to make. In
Counts Three through Eight the decisionmaker
was the Immigration Judge. The Judge's
decision was whether Ms. Kantengwa should be
removed from the United States or granted
asylum, pursuant to the laws and regulations
of the United States. This decision was
guided by the laws and regulations of the
United States on which I will now instruct
you.
First, in all applications for asylum,
the Immigration Judge must make a threshold
determination of the alien's credibility. The
law at the time instructed the Immigration
Judge that adverse credibility determinations
must "pertain to facts central to the merits
of the alien's claims, not merely to
peripheral or trivial matters."
To be eligible for asylum, an alien must
first demonstrate either past persecution or a
well-founded fear of future persecution.
Even if an alien can demonstrate past
persecution or a well-founded fear of future
persecution, he or she is not eligible for
asylum if he or she "ordered, incited,
assisted, or otherwise participated in the
persecution of any person on account of race,
religion, nationality, membership in a
particular social group or political opinion."
This is called the persecutor bar.
Personal involvement in killing or
torture is not necessary in order to determine
that someone "ordered, incited, assisted, or
otherwise participated" in persecution.
However, for the persecutor bar to apply, the
person must have done more than simply
associate with persecutors; there must have

-25-
 Kantengwa argues that this denial was in error, but fails

to show that her requested instruction was "integral to an

important point in the case." Symonevich, 688 F.3d at 24. She

argues that her jury instructions, which present the legal elements

of her asylum claim, were necessary to enable the jury to ascertain

the decision the immigration judge was trying to make, a

prerequisite under Gaudin for determining whether a particular

statement was material. See Gaudin, 515 U.S. at 512 (suggesting

this is a required "subsidiary question[]" in assessing

materiality). She argues that this inclusion is required both as

a matter of law, and as integral to her case.

Not so. Kantengwa's argument notwithstanding, the

omission of a fuller description of the legal instructions

governing removal proceedings was not erroneous because there is no

been some nexus between the alien's actions
and the persecution of others, such that the
alien can fairly be characterized as having
actually assisted or otherwise participated in
that persecution.
Finally, a grant of asylum is
discretionary on the part of the Immigration
Judge. Thus, the final issue the Immigration
Judge considered was whether Kantengwa merited
asylum as a matter of the judge's discretion.
A fact is "material" if it has a natural
tendency to influence or is predictably
capable of influencing the decision or
decisionmaker to which it was addressed,
regardless of whether the decisionmaker
actually relied on it.

-26-
such requirement; indeed, she has not cited any authority to the

contrary.

Nor has Kantengwa demonstrated that the instructions were

integral to her case. On the most charitable reading of her

arguments, she suggests that the instructions as to the persecutor

bar were necessary because the jury needed them to understand that

the persecutor bar would not apply to Kantengwa. But this confuses

the issue. Whether the persecutor bar actually applies is

irrelevant. Cf. Silveira, 426 F.3d at 518. Rather, the jury only

needed to understand that the persecutor bar was at issue in the

removal proceedings, which the jury knew it undisputedly was.

We do not hold that properly drafted additional

instructions along these lines would never be useful. But the

trial judge had discretion to conclude the instructions proffered

did not meet those standards and, more than that, would be

confusing.17

Even so, Kantengwa maintains that the instructions

actually given were erroneous.

17
Indeed, we reject Kantengwa's argument for another reason.
The proffered instructions imply that a statement could only be
material if it pertained to one of the legal elements of the
immigration judge's decision. But this is incorrect. As
discussed, the jury was also entitled to consider whether the
statements were material to smaller, incremental decisions the
immigration judge needed to make in arriving at her ultimate
conclusion. Cf. Scivola, 766 F.2d at 44.

-27-
 She first objects to the instruction that statements

"need not have been related to the primary subject matter of the

proceeding" to be material. Though preserved, there is no error.

This instruction respects our well-settled law in this circuit:

The [allegedly perjurious] statement need not
be material to any particular issue in the
case, but rather may be material to any proper
matter of the [decisionmaker]'s inquiry,
including the issue of credibility.

Scivola, 766 F.2d at 44 (citations omitted).

Kantengwa also raises, for the first time on appeal, a

novel and unclear argument that the instruction as to credibility

embodied legal error. She argues that the instruction essentially

eviscerated the materiality requirement because, under the court's

instructions, any false statement could pertain to credibility.

This, she argues, negates the materiality requirement.18 She made

18
Kantengwa did not make, and so has waived, any argument
that this instruction as to credibility was misleading in light of
the "heart of the matter" rule governing credibility determinations
in Kantengwa's removal hearings. As discussed, this rule greatly
restricts which inconsistencies an immigration judge may consider
in making her credibility determination, Jabri, 675 F.3d at 24,
such that it is not true that any statement that ordinarily would
pertain to credibility in other proceedings is material to
credibility in removal proceedings. Cf. United States v. Akram,
152 F.3d 698, 701-02 (7th Cir. 1998) (discussing concerns about
adoption of a per se rule that statements pertaining to credibility
are material). But if Kantengwa had meant to raise this argument
by citing the instruction and the omission while arguing that the
instructions suggested (misleadingly) that any false statement
could be material, she only gestured at it "in a perfunctory
manner," and so any argument to this effect is waived. United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[A] litigant
has an obligation 'to spell out its arguments squarely and
distinctly . . . .'" (quoting Rivera-Gomez v. de Castro, 843 F.2d

-28-
no such argument to the trial judge, and we think it self-evident

there was no plain error. We also note the jury acquitted

Kantengwa on perjury counts concerning her representations about

her and her husband's political affiliations. Cf. Estate of

Keatinge, 316 F.3d at 16.

IV.

The last issue on appeal is whether the district court

abused its discretion in admitting the testimony of a professional

political scientist and an historical expert on the Rwandan

genocide, Dr. Timothy Longman, as to the existence of a roadblock

in front of Hotel Ihuriro before Kantengwa's departure at the end

of May 1994.19 "We review rulings relating to the admissibility of

expert-witness testimony for clear abuses of discretion, and will

not reverse unless the ruling at issue was predicated on an

incorrect legal standard or we reach a 'definite and firm

conviction that the court made a clear error of judgment.'" United

States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000) (citation omitted)

(quoting United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)).

631, 635 (1st Cir. 1988))).
19
Kantengwa also argues that the district court abused its
discretion in excluding as hearsay a redacted version of the
immigration judge's decision. This issue has been waived.
Kantengwa focused her appellate arguments exclusively on the issue
of whether the immigration judge's decision was relevant to any
issue in her trial, and, in so doing, failed to address the
determination that the decision was hearsay or to even argue that
a hearsay exception applies. Cf. United States v. Gonyer, 761 F.3d
157, 166 n.4 (1st Cir. 2014).

-29-
 The parties do not dispute Dr. Longman's credentials as

a political scientist, or that he is an expert on the Rwandan

genocide whose testimony generally explaining the use of roadblocks

during the genocide might be specialized knowledge relevant and

helpful to the jury.20 Rather, Kantengwa argues that Dr. Longman's

testimony about the particular roadblock's existence is

20
Dr. Longman is a professor of political science and
Director of the African Studies Center at Boston University. He
received his Ph.D. in political science with a minor in African
studies from the University of Wisconsin in 1995. He wrote his
doctoral dissertation on religion and the 1994 genocide, for which
he conducted research in Rwanda in 1992 and 1993. He was primarily
based in Butare.
After completing his Ph.D., he returned to Rwanda in 1995 and
1996 as the Director of the Human Rights Watch's Rwanda field
office in Butare. During his year there, he assisted the Human
Rights Watch's research on the genocide. In particular, he
assisted with researching and conducting interviews for their 1999
book project, Leave None to Tell the Story. Dr. Longman drafted
the book's two chapters on the Nyakizu Commune, a commune near
Butare, which served as one of the book's three case studies (the
other two were Butare and another nearby region). He testified
that Leave None to Tell the Story was "sort of the definitive book"
on the genocide, and that its lead writer was the late Alison Des
Forges, a scholar and human rights activist who won a MacArthur
Genius Grant for the book. Much of his work, particularly the
materials he gathered, has been used as evidence at the ICTR, and
he personally testified in one case.
Following his time with Human Rights Watch in Rwanda, he
directed a project at University of California, Berkeley,
concerning post-genocide Rwanda. He then held several other
academic positions before beginning at Boston University.
Dr. Longman has published dozens of articles and book chapters
on the Rwandan genocide, and Cambridge University Press published
his 2010 book, Christianity and Genocide in Rwanda. His current
scholarship focuses on religion in politics, human rights, and
justice issues, with a particular emphasis on Rwanda and the
surrounding region. At the time of the trial, he was completing a
book on post-genocide Rwanda, titled Memory and Justice in Post-
Genocide Rwanda.

-30-
inadmissible because his belief that there was a particular

roadblock in a particular location at a particular time was based

on nothing more than the repetition of out-of-court statements of

others. She argues the government impermissibly used his testimony

"as little more than a conduit . . . for testimonial hearsay." See

United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009); see

also Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135-36 (2d

Cir. 2013).

The admission of this testimony raises interesting

issues. Dr. Longman's conclusions about the existence and timing

of the Hotel Ihuriro roadblock were largely based on conversations

with people he knew in Butare, twenty to twenty-five formal

interviews (not all relevant), and the work of collaborators on a

book project. He also testified as to other events in Butare at

the time that relied on these materials, as well as other "written

sources."21 Although historical experts may have "specialized

knowledge" that can assist the trier of fact and all experts are

afforded some leeway with respect to hearsay evidence, Fed. R.

Evid. 702, 703, "a party cannot call an expert simply as a conduit

for introducing hearsay under the guise that the testifying expert

used the hearsay as the basis of his testimony." Marvel, 726 F.3d

at 136 (quoting Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d

21
Dr. Longman testified that the written sources his project
generally relied upon included letters and minutes from government
meetings gathered from government archives.

-31-
558, 666 (S.D.N.Y. 2007)) (internal quotation marks omitted).

Rather, as the Second Circuit has observed: "The appropriate way to

adduce factual details of specific past events is, where possible,

through persons who witnessed those events. And the jobs of

judging these witnesses' credibility and drawing inferences from

their testimony belong to the factfinder." Id.

On the other hand, we recognize that sifting through the

many myths and politically charged characterizations in the wake of

the Rwandan genocide to determine what the actual events were

presents a challenge where historical expertise may be particularly

invaluable. Viewing the testimony in this light, Dr. Longman did

not merely act as a "conduit" for the testimony of a select few

individuals, but gave testimony that could explain the consistency

of accounts as to this historical fact about the roadblock at Hotel

Ihuriro, despite conflicting versions of other details about what

happened in Butare during the genocide. His conclusions about the

existence of the roadblock at Hotel Ihuriro seem based in part on

the consistency of the accounts, not merely the interviews

themselves. And his conclusions about the timing of the roadblock

also accord with the consistency of these accounts, the roadblock's

notoriety, and the timing of other political events, such as the

government's meeting and President's speech on April 19, that

brought the full force of genocide to Butare and sparked the quick

establishment of major roadblocks run by the MRND militia. This is

-32-
consistent with generally accepted historical methodology, see,

e.g. United States v. Paracha, 69 Fed. R. Evid. Serv. 130, 2006 WL

12768, at *20-21 (S.D.N.Y. Jan. 3, 2006) (finding historian's

method "consist[ing] of gathering multiple sources . . . ,

including original and secondary sources" to reach conclusions

about historical facts to be reliable), and Kantengwa's counsel

thoroughly interrogated the evidence so that the jury might be

aware of its limitations, cf. Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 596 (1993). See also M.D. Goodman, Slipping through

the Gate: Trusting Daubert and Trial Procedures to Reveal the

'Pseudo-Historian' Expert Witness and to Enable the Reliable

Historian Expert Witness -- Troubling Lessons from Holocaust-

Related Trials, 60 Baylor L. Rev. 824, 861, 868-69 & n.243 (2008)

(citing Paracha, 2006 WL 12768, at *19-21) (suggesting the expert

in Paracha "describ[ed] an appropriate methodology" in explaining

his reliance on hearsay and other secondary sources). Indeed,

there is no suggestion that the adversarial system "skew[ed]" an

otherwise reliable historian's testimony. See Goodman, supra, at

872-73. Dr. Longman thus fulfilled the historian's role of

"surveying a daunting amount of historical sources," evaluating

their reliability, and providing a basis for a "'reliable

narrative[] about the past.'" A. Hasani, Putting History on the

Stand: A Closer Look at the Legitimacy of Criticisms Levied Against

Historians Who Testify as Expert Witnesses, 34 Whittier L. Rev.

-33-
343, 354-55 (2013) (quoting M. Howell & W. Prevenier, From Reliable

Sources: An Introduction To Historical Methods 2 (2001)); see also

Goodman, supra, at 861 (explaining historical experts' role in

"gather[ing], analyz[ing], and synthesiz[ing] countless historical

documents" may be especially helpful "in cases involving

complicated or unfamiliar historical issues").

These features distinguish this case from Marvel

Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013). In Marvel,

the historical experts based their conclusions on "hearsay

statements, made by freelance artists in both formal and informal

settings, concerning Marvel's general practices towards its artists

during the relevant time period." Id. at 136. They then drew on

those statements to "speculate as to the motivations and intentions

of certain parties," or to "opine on the credibility of other

witnesses' accounts." Id. For example, the experts speculated

about certain parties' and witnesses' beliefs about whether

"material they created was 'work made for hire'" based on these

hearsay statements. Id. This is significantly different from

expert testimony assessing a particular historical detail (not

others' states of mind) in light of the consistency of that detail

in testimonial accounts and other corroborative sources about an

otherwise contentious historical event, and in light of the

narrative consistency of that particular historical detail with

other political events in the historical record.

-34-
 And to the extent that portions of Dr. Longman's

testimony merely conveyed hearsay testimony about the timing and

existence of the roadblock, the error, if there were error as to

those portions, was harmless in this case. Iyamuremye testified as

an eyewitness that he saw a roadblock go up on the main road

outside the hotel during the week of April 20 and stay up until he

left Butare on May 30 -- that is, he testified to the existence of

the roadblock during the time Kantengwa was staying in the hotel.

He described it as "the main roadblock," and "big," with twenty to

thirty people "searching," "checking IDs," and "controlling

everyone who was going through." That there was a large roadblock

in front of the hotel during this time was supported by additional

sources of information. Satellite images from just after Kantengwa

left Butare -- along with expert testimony analyzing those images

-- indicate obstructions in the road outside the hotel consistent

with a roadblock. The roadblock's existence just after Kantengwa

left Butare supports the further inference that the same roadblock

existed earlier, particularly in light of the unchallenged portions

of Dr. Longman's testimony. Dr. Longman testified that the

genocide came to Butare on April 19 or 20 and continued during the

entire time Kantengwa was at the hotel; he testified to the use of

roadblocks in the genocide; and he testified to the role of

Kantengwa's brother-in-law and his mother -- the owners and

-35-
operators of the hotel -- as key leaders in government and the

MRND, and perpetrators of genocide.

The district court "has broad discretion in deciding to

admit or exclude expert testimony." United States v. Paiva, 892

F.2d 148, 160 (1st Cir. 1989). Because we lack a "'definite and

firm conviction that the [district] court made a clear error of

judgment,'" we cannot say it abused this broad discretion. Corey,

207 F.3d at 88 (quoting Shay, 57 F.3d at 132).

V.

We affirm.

-36-