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More questions at end of immigration case

  • Associated Press
  • Published Sunday, August 28, 2011, at 12:09 a.m.
  • Updated Sunday, August 28, 2011, at 8:33 a.m.

The U.S. Justice Department decided to end its immigration case against a Kansas man suspected of participating in the 1994 Rwandan genocide after defense attorneys told the government they planned to seek sanctions against prosecutors for withholding evidence, a defense lawyer says.

The comments from defense attorney Melanie Morgan on Friday came a day after a federal judge tossed all charges against Lazare Kobagaya, 84, in what was touted as the first case in the U.S. to require proof of genocide.

Prosecutors had asked the judge to set aside Kobagaya's visa fraud conviction and dismiss a charge of lying during his citizenship application after spending more than $1 million to convict him.

Jurors in May found that Kobagaya, a Burundian immigrant now a U.S. citizen living in Topeka, lied on immigration forms about his whereabouts at the time of the 1994 genocide but said the government did not prove he took part in the atrocities. They deadlocked on the second count related to lying on his citizenship application.

Prosecutors recently had notified the defense that they planned to retry the case. But in their motion seeking to dismiss it, prosecutors said they had identified a potential issue with the jury instructions and witness information.

The government has said it inadvertently failed to disclose information from a consular officer in Kenya that the defense says would have bolstered its case.

The consular officer, who was listed on Kobagaya's immigration application, had told prosecutors that even if she had known Kobagaya was in Rwanda in 1994, it would not have caused her to inquire further because Kobagaya was a Burundian national.

A key argument in the defense case was that the alleged falsehood about Kobagaya's whereabouts during the genocide was not a "material fact" that would have caused further investigation by immigration authorities that could have possibly kept him out of the United States.

The bloodshed ended when mostly Tutsi rebels led by Paul Kagame, who is now the Rwandan president, defeated the extremists.

Kobagaya's family believes the genocide accusations against him were fabricated by the Rwandan government in retaliation for his testifying on behalf of a neighbor accused of war crimes in Finland.

Morgan credits the government's sudden reversal to a letter she sent to the Justice Department. Defense attorneys declined to release a copy of that letter, but Morgan said she told the department that the defense planned to seek to have the case dismissed and seek sanctions against prosecutors.

"I do feel like it was very influential in them coming to a decision about how the case should ultimately be resolved," she said.

Justice Department spokeswoman Alisa Finelli said the agency would have no comment beyond its court filings.

In them, the department wrote that based on the "totality of circumstances," including the substantial resources required and the jury's verdict in the first trial, it decided not to retry the case.

Richard Shain, one of the jurors, said Friday he chuckled when he read about case's dismissal in the newspaper.

"It was a waste of taxpayer's money," he said.

Kobagaya's son, Andre Kandy, said he thinks the defense letter caused someone in the Justice Department to analyze the case and realize it had been duped by the Kagame's government.

Kagame's government did not respond to an e-mail seeking comment.

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