Case dismissed against Wichita man accused of Rwandan crimes

WICHITA – Andre Kandy said his 84-year-old father, Lazare Kobagaya, told him about a prayer he said this week while facing deportation to Rwanda. “He told me he got down on his knees and said, ‘God, you have let me live so long, why would you have me live, just to send me back to this horrible place,’ ” said Kandy, a former Wichita dentist now living in Florida. Two hours later, the call came from Kobagaya’s lawyers in Kansas: Prosecutors were dropping a case that originally accused him of participating in the genocide of Rwanda. After 2-1/2 years and more than $1 million, federal prosecutors with the Department of Justice in Washington, D.C., filed to dismiss the charges this afternoon. Within a couple of hours, U.S. District Judge Monti Belot in Wichita granted that request in what authorities said was the first case involving genocide to be tried on American soil. The prosecutors said in their motion they had failed to disclose a witness whose testimony would have been favorable to the defense. The government had known about the witness since 2008 — five months before charges were filed against Kobagaya. The result: Kobagaya will not lose his U.S. citizenship, face further criminal charges or deportation. “You know, my dad is almost 85, but I think he jumped in the air when he heard the news,” Kandy said of his father, who lives with another son in Topeka. It ended an unusual case that brought some 50 witnesses from Africa to testify in a five-week trial held in Wichita this spring. “In all honesty, the reaction has been one of relief that this is finally over,” said Kurt Kerns, a Wichita attorney who represented Kobagaya. Kobagaya was living in Wichita when a federal grand jury indicted him in January 2009, accusing him of lying on his forms to obtain American citizenship. The focus of the claims accused Kobagaya of being involved in an ethnic revolt, where 500,000 to 800,000 people died in Rwanda from April to July 1994. While the U.S. doesn’t have any authority over crimes committed abroad, they do have jurisdiction over immigration crimes. At trial, jurors could not reach a verdict on whether Kobagaya participated in the killings that took place the African country, and Belot declared a mistrial on that count. Jurors did find Kobagaya guilty of making a false statement on his visa application. To make that finding, jurors had to determine the mistake on the visa application was “materially misleading.” In June, attorney Melanie Morgan of Olathe filed a defense motion asking Belot to set aside the conviction. Morgan argued that an erroneous date on the visa application would not have caused its rejection. Kobagaya does not speak English and needed an interpreter during court proceedings. One of his sons filled out the application, listing Kobagaya as living in Rwanda until 1993. He actually moved in 1994. “Not only was this just an honest and unintentional mistake made by Lazare’s son, there was simply no evidence that had the correct year been placed on the form, that information would have made any difference in the processing of the visa,” Morgan said. Prosecutors originally said the false information on the application allowed Kobagaya to fraudulently obtain his visa. But while responding to Morgan’s motion, prosecutors revealed that investigators had interviewed the woman who processed Kobagaya’s visa in September 2008. She told them the change of date would have not influenced her decision to approve his application. “Had this information been timely disclosed so that it could have been presented to the jury, we have no doubt the jury would have acquitted Mr. Kobagaya on both counts” Morgan said. Kerns said he had not seen such a mistake in his 20 years of practicing law, and pointed out that no one with the offices of the U.S. Attorney in Kansas played a role in making the error. “This is something you read about happening every couple of decades in the legal community, but I’ve never seen it,” Kerns said. A spokeswoman for the Department of Justice declined to comment beyond the court filings. Christina Giffin, a senior trial attorney with the Department of Justice, wrote in her motion that the failure to disclose the witness to the defense, combined with unclear instructions given to the jury, “would likely warrant a new trial” on the visa fraud count. “Based on the totality of circumstances in this case, including the substantial resources required to continue to litigate this matter and the jury’s verdict in the first trial, the Government has determined that it would not seek to retry this case,” Giffin wrote. Estimates over the cost of the case have been placed between $1 million and $2 million, Kerns said. Kerns made several trips to Africa looking for witnesses, and prosecutors had a team staying in Africa for a month before the trial. “These lawyers’ experience in international cases and their willingness to to go Rwanda and Africa in search of the truth is what made the difference,” Andre Kandy said. Throughout the case, Kerns contended Kobagaya’s name never surfaced as being linked to the genocide until he agreed to testify on behalf of a former neighbor being tried in Finland. “My father had lived her peacefully for years and then become a citizen,” Andre Kandy said. Kandy said the family had always believed pressure from Rwandan President Paul Kagame persuaded the U.S. to pursue the charges against Kobagaya. During the case, Rwandan officials had imprisoned an American law professor from Minnesota and threatened to have Kerns arrested. The conviction could have resulted in his father being deported back to Rwanda. “My father is the first one ever to beat the lies of President Kagame,” Kandy said. “I will never understand how such a small country in Africa could have such influence on a country like the United States.” Now, Kandy said he’s looking forward to his father being able to visit him. “It will be his first Florida vacation,” Kandy said.

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