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United States v. Habteyes

United States District Court, E.D. Virginia, Alexandria Division

December 18, 2018




         Defendant, Mergia Negussie Habteyes, was indicted by a federal grand jury on two counts charging defendant with (1) procuring naturalization contrary to law, in violation of 18 U.S.C. § 1425(a), and (2) procuring naturalization to which he was not entitled, in violation of 18 U.S.C. § 1425(b). In essence, the Indictment alleges that defendant, who came to the United States as a refugee in July 1999 and thereafter became a naturalized United States citizen in September 2008, made false and material representations on forms and in sworn statements to immigration and naturalization officials relating to his background in Ethiopia.[1] Specifically, the Indictment alleges that defendant stated that he had never persecuted persons on the basis of political opinion, nor committed crimes for which he was not arrested, when in fact, according to the Indictment, defendant was an agent of the Derg, Ethiopia's then-ruling military council, and in that capacity he had persecuted and interrogated political opponents of the Derg at a prison known as Higher 3 in Addis Ababa, Ethiopia, during a period of time in the late 1970s known as "the Red Terror." According to the Indictment, the Derg waged a campaign of violence against political opponents, including the Ethiopian People's Revolutionary Party (the "EPRP").

         Among the pre-trial motions filed by the parties is the government's motion in limine to admit a document into evidence pursuant to Rules 901(b)(8), 803(16) and 401, Fed.R.Evid. Specifically, the government seeks to introduce a document purporting to be a ledger reflecting the distribution of firearms and ammunition ("the Ledger") to Derg supporters during the Red Terror at Higher 3 prison in Addis Ababa, Ethiopia. Defendant opposes this motion on grounds of lack of authenticity, hearsay, and the danger of misleading the jury. For the reasons that follow, the government's motion to admit the Ledger into evidence in this case must be granted.


         The facts recited here are derived from the testimony of two witnesses offered by the government to establish the authenticity, relevance, and non-hearsay character of the Ledger.

The government's first witness was Tadesse Metekia, the individual who found the Ledger and provided it to the U.S. Department of Justice. Metekia is a native of Ethiopia and is fluent in Amharic, one of the languages prominently spoken in Ethiopia. Metekia has a bachelor's degree in law from Hawassa University in Ethiopia, a master's degree in criminal law and criminology from the University of Groningen in the Netherlands, and a second master's degree in international crime and justice from the University of Turin in Italy. Metekia is also a Ph.D. candidate in the international criminal law program at the University of Groningen in the Netherlands and has conducted extensive research on the prosecution by Ethiopia's Special Prosecutor's Office ("the SPO") of individuals who participated in the Red Terror on behalf of the Derg during the so-called Derg trials. Additionally, Metekia previously served as a legal consultant to the Netherlands' Ministry of Justice and Security. In this post, Metekia located documents and other evidence introduced against Red Terror participants during the Derg trials, which Metekia provided to the Dutch government in connection with a Dutch prosecution of a Red Terror participant for the crime of genocide. Accordingly, the record warrants the conclusion that Metekia is knowledgeable about the Red Terror and the Derg trials and that Metekia has substantial experience locating and examining documents and records relating to the Red Terror and the Derg trials. Metekia's testimony on these subjects, summarized below, is therefore credible and reliable.

         Metekia testified that during the late 1970s, the Derg, Ethiopia's ruling military council, launched a campaign of violent atrocities, known as the Red Terror, against political dissidents. Participants in the Red Terror detained, interrogated, tortured and executed the Derg's political opponents. After the fall of the Derg in 1991, the SPO was established in Ethiopia in 1992. During the 1990s, the SPO initiated a series of prosecutions known as the Derg trials, in which the SPO prosecuted Red Terror participants who had committed crimes of violence on behalf of the Derg.

         In March 2017, the U.S. Department of Justice retained Metekia to provide research services in connection with this case. Specifically, Metekia was directed to search for records relating to a Derg trial conducted in Ethiopia in which "Mergia Negussie," the defendant here, was a named defendant and for other documents that might reveal defendant's whereabouts and actions during the Red Terror period. At this time, Metekia already had in his possession certain court documents that Metekia had obtained from the archives of Ethiopia's Supreme Court, an appellate court, relating to a case the SPO had brought against Mergia Negussie in absentia. Because Ethiopian lower courts do not deliver all of the documents in a case to the Supreme Court, Metekia determined that it was necessary to look for additional documents in the Federal High Court, located in Addis Ababa, Ethiopia, where the SPO had initiated most of the Derg trials.

         In the course of his search for documents relating to the Derg trial of defendant, Metekia visited a branch office of the Federal High Court where most of the files pertaining to the Derg trials were stored. At this branch, the archives clerk directed Metekia to a corner of the room where the Derg trial files were kept. Metekia looked through the files in this section and eventually found a file corresponding to the case brought by the SPO against Mergia Negussie. Metekia observed that documents in the file were organized in the same fashion as other Ethiopian court files. Specifically, the indictment, ruling, judgment and sentencing in the case were fastened to the left side of the folder and copies of the documentary evidence introduced in the case were fastened to the right side of the folder. One of the documents fastened to the evidence section of the folder was the Ledger.

         The Ledger is a two-page handwritten document containing columns that list names of individuals, types of weapons, amounts of ammunition, and signatures. The name "Mergia Negussie" is listed twice in the first column of the Ledger. A header appears on each page of the Ledger that refers to the Revolutionary Campaign Coordinating Committee for Higher 3 ("the RCCC").[2] According to Metekia, the RCCC was a division of the Derg government that supplied weapons to Red Terror participants and coordinated attacks against the Derg's political opponents. Metekia also explained that Higher 3 was a level of the Derg administration in Addis Ababa that also operated a prison in which Red Terror participants interrogated and persecuted political opponents of the Derg.

         Metekia testified that the Ledger also bears an SPO stamp, which, according to Metekia, indicates that the document was filed in the folder pertaining to the Mergia Negussie case in accordance with the standard practice followed by the Ethiopian Federal High Court during the Derg trials. Specifically, according to Metekia, during the Derg trials, the SPO would bring to the Ethiopian Federal High Court the original item of evidence and a copy of the evidence bearing the SPO's stamp. The court would then verify that the copy was accurate and affix the stamped copy to the right side of the folder with the other evidence in the case. The SPO would retain the original item of evidence.

         Metekia also made clear that handwritten dates appear in multiple places on the Ledger. Each of these date markings refer to the year 1970 of the Ethiopian calendar, which, according to Metekia, corresponds to about 1977 or 1978 in the Gregorian calendar.

         Although Metekia had not previously seen a ledger of guns and ammunition in the course of his research, he testified that he had seen other handwritten Derg ledgers that were formatted in a manner similar to the Ledger and that, like the Ledger, also contained names and signatures. Metekia also testified that he observed nothing suspicious or unusual about the appearance of the Ledger. He also stated he was not aware of any instances in which Red Terror records were ever falsified for use against a defendant in the Derg trials.

         The government's second witness at the evidentiary hearing on the admissibility of the Ledger was Special Agent Kathryn Menhart, a special agent in the Department of Homeland Security ("DHS") who interviewed defendant after his arrest in connection with offenses charged in the Indictment. Agent Menhart has been a special agent for approximately thirteen years and is a lead DHS case agent for defendant's unlawful naturalization matter. Agent Menhart testified as follows.

         In the course of investigating defendant's case, Agent Menhart interviewed individuals who claimed to have been imprisoned in the Higher 3 prison in Addis Ababa, Ethiopia during the Red Terror. Agent Menhart testified that those individuals confirmed that the Higher 3 prison was a large villa or mansion that the Derg confiscated and used as a prison. These individuals also stated to Agent Menhart that they were imprisoned because they were thought to be members of political groups such as the EPRP that opposed the Derg regime. These individuals also claimed to Agent Menhart that during their imprisonment at the Higher 3 prison, they were interrogated and violently beaten.

         Five of these individuals provided the identity of the persons who performed the alleged interrogations and beatings. All five of these individuals identified defendant as one of the persons who performed the alleged interrogations and beatings by providing defendant's first name, last name, or both and by identifying defendant either in an in-person lineup or in a photo array. At least some if not all of these individuals also claimed that defendant was armed with a gun at the Higher 3 prison. Some of these individuals also identified persons including "Worku Mengesha," "Hamelmal Mogus," "Nemrud Negash," and "Negede Abraham" either by first name, last name, or both, as persons who performed interrogations, beatings, and other abuse at Higher 3.

         Defendant was arrested in connection with the charges alleged in the Indictment On August 17, 2018, at approximately 4:35 A.M., the time at which defendant typically left his home in the morning to go to his job at a parking garage, where he worked the early shift. Agent Menhart participated in defendant's arrest. After being Mirandized, defendant consented verbally and in writing to an interview with government agents, including Agent Menhart. The post-arrest interview lasted for about ninety minutes. From her interactions with defendant during his arrest and interview, Agent Menhart determined that defendant could capably speak and understand English. Defendant did not ask for an Amharic interpreter, nor was he provided with one. Agent Menhart conducted the interview in English and observed nothing to indicate that defendant did not understand what he was being asked or that defendant needed an interpreter.

         During the interview, Agent Menhart showed defendant a copy of the Ledger in which the first of the two rows bearing the name "Mergia Negussie" in the first column was highlighted. Agent Menhart asked defendant if the name in the highlighted row was his name. In response, defendant confirmed three times that the highlighted name was his name.[3] Agent Menhart then asked defendant if the signature in the highlighted row of the Ledger was his signature. In response, defendant stated that the signature was his. After reading over the document for a brief period of time, defendant then changed his answer and stated that the signature was not his. Again, after attempting to retract his statement that the signature in the highlighted row was his, defendant confirmed that the name listed in the first column in the highlighted row was his name.

         Later in the interview, as defendant was examining the Ledger, defendant stated that his name was listed on the Ledger a second time, in the first column of a row several rows below the highlighted row. This additional row that defendant pointed out also bore the name "Mergia Negussie" in the Ledger's first column.

         During cross-examination, counsel for defendant showed Agent Menhart defendant's Certificate of Naturalization, which defendant had signed in 2008, and defendant's Registration for Classification as a Refugee, which defendant signed in 1999. Agent Menhart, who noted that she has had no special training as a handwriting analyst, testified that defendant's signatures on the two immigration forms did not resemble the signatures appearing in the seventh column in the two rows in the Ledger that correspond to the name "Mergia Negussie."

         On the basis of this testimony, the government argues that the Ledger is authentic pursuant to Rule 901(b)(8), that any hearsay contained within the Ledger is subject to the hearsay exception under Rule 803(16), and that the Ledger is relevant under Rule 401. Defendant argues to the contrary that the Ledger is neither authentic nor subject to a hearsay exception and that the Ledger's probative value is outweighed by the danger of misleading the jury.


         The authenticity of a document simply refers to whether a document is in fact what it is purported to be. In the context of this case, the government seeks to authenticate the Ledger as a document reflecting the distribution of firearms and ammunition to Derg supporters during the Red Terror at Higher 3 prison in Addis Ababa, Ethiopia. Authenticity is a requirement of admissibility. Rule 901(a), Fed.R.Evid. Defendant objects to the admissibility of the Ledger on the ground that, in his view, it is not authentic. The government argues that the Ledger is authentic and presented evidence to that effect. To satisfy the requirement of authenticating an item of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Id. The proponent's burden to show an item of evidence is authentic "is not high-only aprimafacie showing is required." United States v. Vidacak,553 F.3d 344, 349 (4th Cir. 2009). This is so because, as the Fourth Circuit has explained, "the factual determination of whether evidence is that which the proponent claims is ultimately reserved for the ...

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