Understanding the Montano Sentencing Process for the Crimes of Immigration Fraud and Perjury

Understanding the Montano Sentencing Process for the Crimes of Immigration Fraud and Perjury

By Carolyn Patty Blum, Senior Legal Adviser, CJA

The January 15, 2013 sentence of Colonel Montano, one of the co-conspirators indicted by the Spanish National Court for the 1989 murders of six Jesuit priests, their housekeeper and her daughter, was continued for at least two months.  The main issue behind this delay is the extent to which evidence regarding Colonel Montano’s record of human rights abuses can be brought to bear on the duration of his jail sentence.  In order to understand this continuance, some background is necessary.  This report describes, first, the pre-sentence filings that set the stage for the continuance and, second, the legal argument that took place in court on January 15, 2013.  

The Pre-Sentencing Filings of the Government and the Defendant  

Prior to the commencement of the sentencing hearing, the Probation Department, as they are required to do for criminal sentencing, generated a pre-sentencing report, which is not publicly available.  The defendant filed a response signaling his major arguments for advocating for a reduced sentence.  The defendant’s lawyer argued that Montano’s plea to six counts of immigration fraud and perjury actually amounted to only two continuous counts since, as the defendant argues, it is not necessary to count each of the three repetitions of the crimes.  He also argues that he had no criminal record nor had he been investigated for human rights-related crimes.  

The Government filed a detailed memorandum that made two principal arguments regarding the duration of Montano’s sentence.  First, the Government argued that the Base Level of the Federal Sentencing Guidelines should be Base Level 15.  The Government’s argument was premised on the fact that Montano lied to obtain immigration benefits, in part, to avoid possible prosecution in El Salvador for his role in the Jesuit massacre.  Second, the Government also argued for an enhanced sentenced on what is termed the Criminal History Category.  Disputing the Probation Department’s recommendation of the lowest Criminal History Category level (I), based solely on Montano’s lack of a record of criminal conviction, the Government argued for the highest level (VI).  This argument is based on Colonel Montano’s documented record of commanding troops committing human rights abuses and his participation in the conspiracy to kill the Jesuits.  The Government’s argument for a longer sentence is supported by a fifty-page report from Salvadoran expert Terry Karl, a political science professor from Stanford University.  Professor Karl’s report was accompanied by a detailed statistical analysis of human rights abuses committed under Montano’s command, culminating in the killing of the Jesuits.

In addition, CJA, with the assistance of the law firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, gathered and filed letters with the Court, three written by persons who were direct victims of troops commanded by Montano and four from people who had worked closely with the Jesuits, including the President and Chancellor of two U.S. Jesuit universities.  These letters were submitted in order to inform the Court of the victim’s perspective as well as to shed light on the enormity of the murders of the Jesuit priests.

Finally, the afternoon before the hearing, the defendant filed a response to the Government’s memorandum.  Montano’s lawyer argued that the Government’s arguments in favor of a sentence enhancement substantially differed from those anticipated by the defendant at the time he agreed to the plea deal when he admitted his guilt for immigration fraud and perjury charges.  Further, the defendant questioned whether the judge anticipated making use of the CJA-gathered letters arguing that they were not “victim statements” because the crimes of immigration fraud and perjury are victimless crimes. 

These disparities set the stage for the pre-sentencing hearing.

The Pre-Sentencing Hearing of Colonel Inocente Orlando Montano, January 15, 2013

U.S. District Court Judge Douglas P. Woodlock opened the hearing seeking to find common ground.  The first agenda item was the defendant’s argument that the six plead-to charges should be counted as a single charge.  Judge Woodlock noted that the defendant repeatedly lied to stay in the U.S. even though his presence here was (and is) illegal.  The judge stated that Montano tried to circumvent the law on an annual basis.  As a result, he ruled that the counts would not be bundled together, nor would the perjury counts and immigration fraud charges be grouped in pairs.  The net result was that, at minimum, the base level computation under the Federal Sentencing Guidelines would be 14, which converts to a minimum starting place for sentencing of 15-21 months in prison when Montano finally is sentenced.

Next, Judge Woodlock turned to a discussion of the obligations inherent in the plea agreement.  Embedded in this argument were several concerns including the discretionary scope of a judge’s authority as the ultimate arbiter of sentencing.  A second concern was whether the Government had given the defendant notice, prior to its memorandum, that it would seek an enhanced sentence, particularly on the basis of Montano’s human rights record.  As evidence of notice, the Government emphasized prior in-court discussion of the relevance of the Boskic case, another immigration fraud case heard before Judge Woodlock.  In that case, the defendant received an upward departure in his sentence because of his participation in the massacre at Srebrenica.  Judge Woodlock gave Boskic a sentence of 63 months.  Further, the Government emphasized that it had given prior notice to the defendant of its intention to argue the relevance of the defendant’s history of human rights abuses in El Salvador and involvement in the Jesuit massacre.

In the context of this discussion about the plea agreement and the Government’s request for an enhanced sentence based on Montano’s human rights record, Judge Woodlock stated that, if considered, the evidence under discussion – the Karl Expert Report and appendices and the CJA letter submission – could be relevant.  He also brought up his own ruling in Xuncax v. Gramajo, 866 F. Supp. 162 (D. Mass 1995), a leading Alien Tort Statute command responsibility case against a high-ranking Guatemalan official in which the defendant was found liable for the actions of subordinates, a case which relies, in part, on the U.S. Supreme Court decision in In The Matter of Yamashita, 327 U.S. 1 (1946).  By citing these cases, it would appear that the Judge was signaling that the controlling law reflects that the actions of commanders can be relevant to the criminal history criteria in the same manner as the actions of direct perpetrators.  While the defendant’s attorney continued to press his argument that the CJA-generated letters were not those of victims, the Judge seemed to indicate that they were relevant unless the defendant could supply information undermining them. 

As a result, the Court found it appropriate to continue the case and ordered further briefing by both parties.  The Government is to brief the impact of the plea agreement on the scope of the judge’s discretion.  The defense is to address whether and to what extent the Court should consider the Karl Expert Report and the CJA letters, whether the defendant can provide any countervailing evidence, and whether testimony should be taken at the next hearing.
Briefs are due March 1, 2013; responses to these briefs are due March 15, 2013.  A hearing date for the sentencing was not set, although it is expected sometime relatively sooner after the completion of briefing.  Finally, the judge raised the issue of whether Montano’s application for a renewal of his Salvadoran passport was in violation of his parole conditions and added that he was not bound by the Magistrate Judge’s decision that Montano’s actions were not in violation of his parole terms. 

Analysis of Proceedings: The overall impression from the proceedings is that the Government has developed a strong argument for the inclusion of the human rights-related material as a basis for an enhancement of Montano’s sentence.  At the January 15, 2013 hearing, the Court made no rulings in favor of the defendant.  While Judge Woodlock left open many questions, the tenor of the proceedings, plus his evident interest in the Karl Expert Report and the CJA-generated letters, indicates that he sees no material difference between his prior consideration of human rights abuses as evidence of criminal history for a direct perpetrator, as he did in Boskic, and Montano’s human rights record as a commander, analogous to evidence considered in his decision in Xuncax.  Thus, the rulings on January 15, 2013 laid the groundwork for a fuller review of Montano’s human rights record and potentially the first time that the particulars of the Jesuit massacre, and Montano’s role in ordering the killings, will be publicly heard in a U.S. federal court.