ecclesia court morning my name is ray sheets i'm from cedar rapids iowa i represent mr mcgovern when i got involved in this case shortly after the jury trial was over  the trial counsel at that time was asked to file a motion for a new trial and he refused to do so and that's when i was hired to represent mr gumbo now i want to first begin by talking the essence of the allegations against mr mcgowan was that he falsely stated in his naturalization application several things regarding his family several stage in the proceedings asked for additional counsel to assist him that motion because he stated that he was not competent or not or that denial he filed objections to the order and among his objections were the magistrate found that trial counsel was a competent and qualified attorney and that magistrate thought he could do a good job representing mr gamboa a document thirty five in the record proconsul objected to the finding that he was a competent attorney in regards to this kind of case witnesses he went to africa to interview witnesses to several countries and witnesses he hired a investigator to accompany him when he was interviewing the witnesses in africa at the hearing on the motion for a new trial he disclosed that his office of the federal defender's office in des moines paid the investigator approximately one hundred thousand dollars to accompany mr burns and the important thing about that is right in mr burns's own backyard literally are the children of mr mcgowan who had direct knowledge of every single of the allegations against mr gumbel child counsel chose not to interview these children the children are all adults two of them have a very very clear memory as to what happened in rwanda all of them so in art in this case the defense has to show two things in regards to this motion for a new trial the first is counsel's performance was de circuit has held that strategic decisions by trial counsel are almost on question but that same presumption does not follow when trial counsel feels to investigate the case quote strategic choices made due to a lack of investigation  not protected by the presumption that counsel's performance was reasonable in this case we have trial counsel's failure to investigate and to interview the most pertinent witnesses counsel do we really have a feeler to investigate here or was it is strategic decision not to interview the children because they felt that there could be damaging information revealed by those in my response or that he's turning how's the obligation to interview all witnesses have informant information about the dean quote damaging evidence that the children have is in regards to something that the government already knew at the time of trial just because you may or may because mr trial counsel believe that the children had one piece of evidence that he believed was damaging he didn't know anything all the other parts all the other key pieces of evidence that were very very favorable and the reason that is so important that he failed to investigate and fail to interview the witnesses is because there is not that same presumption of reasonableness that exists when an attorney does interview witnesses and then decides well i won't call this witness because of that damaging information  we didn't we don't even get to that far we don't get to that point and if i included in mind the elements of the conspiracy the overt acts of the conspiracy and most of the  ods alleged by the government the children had direct knowledge of that for example had was that they were the nephews which had been raised by the newcomer family since they were small children that's small potatoes compared to the to the large picture so that wasn't they were interviewed by immigration and that they were falsely stated that or that they stated that their own call was a rwandan politician if mr byrne if the trial coun would have spoke to them prior to trial he would have learned that they were never interviewed by anyone while they were in the refugee camps and because they were never interviewed by anyone they certainly didn't make any false statements that was set forth in the interocular stories which the jury found because there was no evidence to the contrary the children were willing to testify the evidence shows that they were at the courthouse want testify but they were never called as witnesses the only witness that was called or there were two by  counsel secretary now trial counsel made some direct examinations of a few of the government witnesses during the government's case in chief but the effect that that had was negligible so this the motion for new trial is critical to this case other things that occurred the second thing that we have to show is that the trial counsel's deficient performance prejudiced the defendants but for the counsel's unprofessional errors the result would have been different well one can simply look at the  that most of those dealt with family relationships or what had happened in the refugee camps trial consuls failure to file a just basic motions in terms of for example a motion to dismiss based upon the double jeopardy clause of the constitution the court found in the government after the verdicts were given by the jury the defense filed a motion to merge those counts because of the obvious double jeopardy issues  the motion or the any other any questions regarding the motion for new trial i want to move on then to the sensing issues there are  three sensing issues are for sensing issues the first is the district court's analysis of the ex post facto in this case we have the last alleged act family relationships regarding his alleged membership in political organizations and rwanda he was convicted and the district court used the end in two thousand and twelve six years after the elaborate last act occurred regarding the naturalization offenses the base offense level was increased by seventeen seventeen levels well after the conclusion of the offenses for the immigration the district court found that because mr mcgowan what had falsely given an interview with a federal agent in two thousand and fourteen then this report used the one book method which is was from two thousand and fourteen and applied that the one book rule is invalid or that the district court made an error in relating the false statements one thousand and one charge back to the original false statements or ball both  the grouping decision made by the district court the court grouped all of the offenses together and we objected to that at the time of sentencing and in our brief we discussed the district court talked about victims and found that there were the same victims the pardon homeland security but naturalization fraud is a victimless crime so one has to look at the please the court i'm richard murphy was the prosecutor lead prosecutor at trial and also of course on the brief oh address the two arguments raised by a it's counsel first with regards to the ineffective assistance of counsel claim obviously he accurately notes there's two prongs one is the effectiveness claim whether or not it's constitutionally ineffective inefficient performance and then the second is prejudice there was there is neither prejudice nor was there deficient performance here i would note that just a couple matters in trying to review make sure i didn't make any mistakes in my review of his brief but mr sheets talks here today about some things that he does not ever raise before on appeal or not raise in his brief about mr burns suppose we're not filing motions for a new trial or for claiming that he's not competent in some pretrial filing or his failure to file basic motions those are not the issues that have been raised on this appeal so unless the court has questions about those i'm going to direct my attention to the issues that were raised on and on appeal the defendant raised three issues he said that the defendant in an overarching issue essentially that that defense counsel engaging deficient performance by not interviewing a number of witnesses by not calling some witnesses and in pretoria particular areas that lead to prejudice and three particular areas one had to do  january one birthdates of these witnesses would have been called would have supported his theory that the defendant didn't make the statements that were attributed to him by a number of witnesses but that interpreters have misinterpreted statements repeatedly over the course of time and that his children primarily or other family members could have been called to establish those in accuracies else was the birthdate issue even raised in the motion for a new trial if it was not raised it was not an issue that was even litigated at trial and the birthdate issue just to be clear would understand what it is all the birth dates were attributed basically of the children is january first not uncommon there was testimony about that that's not a comma because records don't exist in these countries that have been effectively war torn or civil strife they don't exist but more importantly the defendant testified that offended himself that the january one birth dates were because he couldn't recall the dates of birth and that's what the un told him to put down so not only was it not an issue raise a trial or in the subsequent motions but it's really somewhat of a non issue because the defendant explained the reason for the ten her one birthday at trial it was never anything the government claimed was it was a false statement the second an issue about whether or not the defendant had more than one wife there was the defendant's attorney had actually gone to rwanda twice he done conducted a fair amount of investigation he hired an investigator in a wan worked with the investigator on the wanted this was a highly experienced defense attorney thirty one years as a as a lawyer nearly ninety trials he served nine years as an appellate defender he's fully aware of what the standards are for effective assistance and record shows he fully complied with his duties he investigated these claims about marriage and what he found out that the government was right the government was alleging that the defendant had been married to another the defendant claim lee never had been married to her that had an impact on whether or not he had children with her whether or not he had to married to people in rwanda all which were important because the evidence showed you can only make lawful claims for refugee status for your true biological children he was trying to bring in kids who were his children there were also issues of is a question on immigration forms with you present plexus practice polygamy in the united states which could be a disqualifier for relief he's got two spouses he's practicing polygamy so there were there were a number of issues like that that defense counsel appreciated and didn't want to highlight this issue concerning macaca bonda whether or not he was indeed married to macaca body didn't want to get into the marriage issue any more than it had been addressed to trial  testified to that and aside from that what could defendant's children testify to at best what they could testify to is that they believed that the defendant was married to macaca bond none of them had ever seen a marriage difficult obviously they've never they were not present maybe not so obviously but they weren't present for any marriage ceremony so they could have offered very little on that point the next matter is whether or not the immigration or views of children there was there was discussion here about you know you should have called these children to testify at trial well as the court specifically found the cork specifically rejected this claim that the defendant counsel didn't call witnesses to testify at trial there were witnesses that the government presented but that but through an agreement with counsel that he was then able to take the witnesses on direct rather than having to recall them as his own witnesses and he did that with four witnesses and two of defendant's children or three of the finest children actually did testify at trial and defense counsel did ask them about some of these relevant issues and the counsel is now complaining about so there is contrary evidence in the record concerning the marriage to macaca bondo who was the mother there's evidence that that was i would say favorable somewhat favorable to the defense that came in through the witnesses who the government called there certainly was incriminating evidence and that's why the government called those children if you will as as witnesses but the government didn't find out the court noted until a week before trial that two of the witnesses who had had a grand jury who had been interviewing two of the children two of the older children were actually not children not biological children and defendant they were the ones who purported to come into the country as husband and wife bringing their children we did find out to a week before trial that that those children were not children they were actually nephews and we had found out before that a few months before that somebody year before that that one of the other children was only a child of the defendants but it was a child of his with with  who he denied having been married to or effectively having any relationship and then when he was interviewed again in november of two thousand and fourteen he finally admitted when he had seen the guy been aware that is one son had been in the grand jury and that his son had told us in two thousand and fourteen that his mother was near macoun b it was a macaca vonda he then finally admitted that but he still claimed the others were his biological children he still claimed he had not been married to and defense counsel to his investigation had learned that some of those facts were not true he had to have it inside develop witnesses and he didn't want to put on certain witnesses at trial so that would make us available to cross examine obviously the defense putting on witnesses to support a position that he believed in in fact knew to not be true might raise some ethical concerns i submit that the  here fully carried out his duties as as an effective attorney the problem was the real problem was here that the defendant had lied about a lot of things and those lies are set out in our sentencing memo a at the district court docket at one ninety four seventy to seventy four in the in the district court's order docket to eleven pages eleven to twelve but there are a number of things you lied about having  relatives in the military which was important because it was the military that was committing the genocide in rwanda and there was testimony about that if you had relatives in the military who were committing the genocide in rwanda than it was he similarly aligned was he also a genesee there and in fact there was evidence there's evidence in the in the record sentencing record from mr robbie dottie his brother who was in the military who  convicted of genocide and whose own statement says that he went to the defendant's house when the genocide started to protect him well there was evidence and reason to believe that if you were being protected then you were part of the party that was committing the genocide so that's one of the lies he you denied of course this goes into sentencing but that that he was he denied on the immigration forms  not been involved in killing others or persecuting others in the court found that to not be true and that was important because if he had admitted that he would have been allowed to come in as a refugee he lied about his surviving family claimed all his family have been killed essentially in the in the genocide and this is again in advance of the refugee claim and that was important as the ins officer testified because if he had other family members who were surviving in rwanda then that raises the question well how can they survive if they are like minded to you if you are like minded to them if you have fears about your family being killed because of your status how can they survive there you claim you can't and the answer is because he was involved in the genocide and he was wanted he would have been a danger had he gone back there by people who might have retaliated against him for what he did during the genocide party but then empty our power were violent ones that worked with a militia group called the in terra hom way to commit the genocide and there was evidence that he was a member of m t r power versus what's the business  his claim here is uncle was prime minister or some high official what it was that was the main claim if you will the main falshood that is the primary reason that the ins officer romana with some of the neighboring can some of the neighboring countries in the russian accords were was a power sharing arrangement so they took c great minority i mean a five percent minority in rwanda  the courts which would basically a power sharing arrangement so that the twenty would be given some share in the government with the hutu and that they would be able to try to go forward in a peaceful way while the hutu didn't want that they didn't want anything to do shot down that's when the genocide started within the next day the hutu began mass slaughtering tootsies and others that were sympathetic to the tutsi and the genocide started that went on for one hundred invaded the country after one hundred days and were able to put down this uprising of the hutu which that found it was a member of and many many witnesses said he was of a leader in a killer in the genocide court found that those were within a moderate member of the m t r power was employed in place as the prime minister going forward post genocide and he stayed there for about a year and then more disputes began to rise in the government he he exiled to belgium so it's i'm sorry that's a long answer but so the defendant claims that he's the brother of two girls mongol was not favorably viewed by a big part of the population because he was in favor of this power sharing arrangement he was somewhat sympathetic to the city and so he eventually had to go in exile to belgium and the defendant says essentially in so many words and believe it's exhibit five  recall correctly but interviewed with joe martin and with other people in the refugee process interviewed several times when he basically says that's my brother and he's wanted people want to kill him there because they think he's sympathetic to go back i'll be killed because i'm aligned with him and again this goes to the same thing and then he claims his whole family had been killed in fact they hadn't been killed and the immigration officer says had we known that had we known that this stuff wasn't true and we couldn't investigate it and were drinking out of a firehose there's hundreds of thousands of a million or more refugees we're trying to identify the for the relative few that are  won't be eleven one b one point eleven capital b couple three and and here there was a change in the guidelines that that followed the cite that case and anderson we believe is still good law that case and there are numerous other cases that the qualls case which was unpublished of second circuit but the pagan for our case collects a bunch of cases on this issue shocked shocked bosnian out of the fifth circuit which the which the district court cites and as i haue had case i was seven but we do believe that's correctly decided we believe that the counts here were properly grouped because the defendant committed the fraud or lied and effectively to come into the country that was fraud he committed that fraud and then when he was questioned about it in november of fourteen he changes his mind says no i never lied i never lied again to continue the fraud if you did mitty lied he would have admitted he committed immigration fraud and he be deported but in two thousand and fourteen he has to then change to say i never lied and ever claim to care among go was my brother i never made these other statements so we claim that those are two offenses connected by a common scheme or plan and the common scheme or plan here was to remain lawfully in the united states get status and unlawfully remain in the united states but it's just as ability to enforce immigration laws and investigate the immigration violations the victim becomes a societal interest in the societal interest is in forcing the immigration laws so in this grouping issue i'm not even sure though on further review that the grouping issue matters because if you look at the guidelines if you look at the background to one we want to leaven the background itself post pew says it doesn't even matter if the guidelines group or not whether they group or not you still apply the second book of the most recent book and that does not violate pew it's never been found to violate pew by any circuit that i'm aware of i think  going back to the original motion for new trial the court had asked a question about january one birth dates and the government well it was the defendant explained that it was what the united nations told him to say and that was the defendant's testimony and in one sentence at the trial but i think that illustrates that there was a lot of i mean if you can imagine as  the government states you're in a refugee camp with a million people and i can't imagine that what the conditions were but the there was a lot  of by by everyone to process these people and get them out of these horrific conditions that they were in and that included stating birth names that weren't correct that included  including having your nephews who you were there in the camp with listed as children and mr mr goh most children would have testified that they always considered them to be brothers and sisters in fact several of them to us why the motion for new trial that they didn't even know that they were not their biological brothers and that was the first time that they learned of it now mr murphy or the government states that  counsel was a highly experienced attorney you just look at the documents thirty five his objections to the magistrate's order denying a motion to appoint counsel and he objected truck counse from from trial counsel himself there is no doubt that trial counsel investigated the case he went to africa twice at the government expense rapids he didn't talk to and they had the best evidence as to family relationships and that this is what the trial was about it wasn't about m d f it wasn't about this party or that party it was about they were never questioned about many of the things that the jury found for example were you ever interviewed by immigration during law you were in refugee camps they were harassed i questioned grand jury yet the jury found that they were