United States District Court, D. Vermont
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Edin Sakoc, Defendant: David L. McColgin , AFPD, Steven L. Barth , AFPD, Office of the Federal Public Defender, District of Vermont, Burlington, VT.
For USA, Plaintiff: Eugenia A. Cowles , AUSA, United States Attorney's Office, Burlington, VT; Jay A. Bauer , SAUSA, Matthew C. Singer, SAUSA, PRO HAC VICE, United States Department of Justice, Human Rights and Special Prosecutions Section, Washington, DC.
OPINION AND ORDER
William K. Sessions III, District Court Judge.
Defendant Edin Sakoč was charged with unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a). ECF No. 1. The jury heard trial testimony lasting for several weeks and ultimately returned a guilty verdict. Mr. Sakoč now moves for a new trial pursuant to Federal Rule of Criminal Procedure 33 because, he argues, the government's summation constructively
amended the indictment or, at a minimum, constituted a prejudicial variance. ECF No. 199. Mr. Sakoč also argues that a new trial is warranted because the verdict is against the weight of the evidence. For the reasons described in detail below, Mr. Sakoč 's motion for a new trial is granted.
I. Factual and Procedural Background
A. Background Facts
In 1992 armed conflict began in the republic of Bosnia and Herzegovina (" Bosnia" ) and continued for several years. Mr. Sakoč is a Bosnian Muslim from the č aplijina municipality in Bosnia but is now a naturalized United States citizen. According to the government, Mr. Sakoč participated in the armed conflict and persecuted Bosnian Serbs.
The government's proof focused on a single night in July of 1992. Mr. Sakoč allegedly acted in concert with his Croatian co-conspirator whom witnesses referred to as " Boban." Boban's whereabouts and true identity are unknown. On or about July 9, 1992, Mr. Sakoč and Boban allegedly removed Tatjana Cucak, a Bosnian Serb, from the home where she, her mother, Cvijeta Cucak, and her aunt, Vislija Ekmecic, were staying. The three women had left their own home after it had been targeted by Croat forces and were spending the night with their friends, Misko and Nedja Durascovic.
The government alleged that after removing Tatjana Cucak from the Durascovics' residence, Mr. Sakoč brought her to a house in the nearby village of Poč itelj where he assaulted and raped her. Various witnesses' accounts of the events surrounding the rape and the house where it allegedly took place conflicted, often sharply, with one another. The parties' theories of the case diverged most significantly with respect to this testimony.
According to the government, Mr. Sakoč then brought Ms. Cucak to a concentration camp after leaving Poč itelj and returned with Boban to the Durascovic residence. There Boban allegedly shot Cvijeta Cucak and Vislija Ekmecic and burned their bodies and former home. At trial the government claimed that in addition to the rape, Mr. Sakoč aided and abetted Boban and lied about all of these events on multiple occasions throughout his immigration process.
B. The Indictment
The Indictment refers generally to the conflict in Bosnia and specifically to the night of July 9, 1992. It describes the three women as Victim-1, Victim-2, and Victim-3 and includes details of the alleged assault and rape, murder, and burning.
The Indictment also describes Mr. Sakoč 's immigration history. In March of 2001, Mr. Sakoč sought refugee status in the United States. As part of the process he completed refugee application Form I-590 and met with a United States Immigration Officer. The form asked " a number of questions related to his past, including his prior military service." ECF No. 1 at 3. During his interview he " denied committing any acts of persecution while in the military." Id. He affirmed under penalty of perjury that the information he provided was true and correct and was ultimately granted authorization to enter the United States as a refugee. Mr. Sakoč arrived in May of 2001 and settled in Vermont.
In March of 2004, Mr. Sakoč became a Legal Permanent Resident (" LPR" ) of the United States. His application to become an LPR included Form I-485, which " asked a number of questions related to his past, including questions related to the commission of past crimes." Id. He denied committing any crimes and affirmed
under penalty of perjury that the information provided was true and correct.
In February of 2007 in Mr. Sakoč applied to become a naturalized citizen of the United States. In support of his application he completed a naturalization application, Form N-400, which " asked a number of questions related to his past, including questions related to any past crimes he may have committed and whether he persecuted anyone." ECF No. 1 at 4. He denied committing any crimes or persecuting anyone and affirmed under penalty of perjury the information he provided was true and correct. A United States Immigration Officer interviewed him in June of 2007. In the interview he " denied committing any crimes." Id. In September of 2007 he was naturalized in the District of Vermont.
Count 1 charges Mr. Sakoč with " knowingly procur[ing] his own naturalization contrary to law . . . in violation of Title 18, United States Code, Sections 1001(a) (Making False Statements) and 1015(a) (Making False Statements Related to Naturalization or Citizenship)." ECF No. 1 at 4-5. The Indictment then describes the specific questions on Form N-400 that the government alleges Mr. Sakoč answered falsely: 1) question 15 asked whether he had " committed any crime" for which he had not been arrested, 2) question 11 asked whether he had ever " persecuted ( either directly or indirectly) any person because of race, religion, national origin, membership in a particular social group or political opinion," 3) question 23 asked whether he had ever " given false or misleading information to any U.S. government official while applying for any immigration benefit," and 4) question 24 asked whether he had ever " lied to any U.S. government official to ...