Finality in the Jabateh case
In spring 2025, Civitas Maxima was alerted to the fact that Mohamed Jabateh had lodged another appeal in his case. This was surprising because we had been under the impression that his case was final. Jabateh had been prosecuted and convicted in 2018 on two counts of immigration fraud and two counts of perjury (lying under oath). He was sentenced to a total of 30 years in prison—10 years for each count of fraud and 5 years for each count of perjury, with the sentences running one after another.
Immediately afterward, he filed an appeal challenging his convictions as well as his sentence. In his challenge, he raised a new issue: that the conduct for which he was convicted of immigration fraud did not actually violate the law. The conduct in question was making a false oral statement under oath about a material fact. Specifically, when Jabateh was interviewed as part of the process of applying for legal permanent residency, he swore under oath that his answers of “no” on the required documents—asking whether he had ever participated in genocide or persecution or ever tried to obtain an immigration document by fraud—were true. The government, however, had proved at trial that the answers were false.
Jabateh argued that the language of the law was ambiguous and that the appropriate interpretation of the law was that it criminalized making a written false statement about a material fact within a document, not making a false statement orally about a material fact contained in a document. Put in the words of the appellate judges, “the Government did not charge Jabateh with fraud in his immigration documents, only with orally lying about those documents.”[1] Indeed, the government could not have charged Jabateh with the fraud in his documents because the documents had been filled out a decade before his immigration interview and the statute of limitations (the amount of time a person can be prosecuted after a crime is committed) had long passed.
When the appellate court handed down its decision on these issues in 2020, it agreed with Jabateh that the “ordinary and best reading” of the law did not support the government’s interpretation.[2] Therefore, this meant that Jabateh had been convicted of crimes he did not commit. However, because this was a new issue raised only on appeal and not at trial, the very strict standard of review of “plain error” had to be applied in assessing whether Jabateh’s convictions should be overturned. Given that the new interpretation was not clear or obvious nor was there any previous caselaw analyzing its scope, the court found that there was no plain error and confirmed the convictions.
Several years into Jabateh’s imprisonment, he filed another appeal on the same issue, this time using a different procedural avenue. The stakes were high—if Jabateh’s convictions for fraud were vacated, 20 years of his imprisonment disappear. With a 15% reduction for good behavior applied to his remaining 10 year sentence for perjury, and accounting for his pre-trial detention, he would have been eligible for release in mid-October 2024.[3]
On March 25, 2026, the appeals court handed down its opinion. The court was sympathetic to Jabateh’s argument that imprisonment for conduct that is not prohibited as a crime violates due process rights. But it could not ignore the procedural mechanism by which Jabateh had brought the appeal; that mechanism does not allow for a reanalysis of an issue that had already been decided on direct appeal. The court was therefore bound by precedent to reject his appeal.
Jabateh’s convictions for immigration fraud, therefore, stand and he must continue to serve the remainder of his 30 year sentence. This outcome is deeply uncomfortable: the court itself agreed, once again, that Jabateh was convicted of conduct that does not constitute a crime under a proper reading of the law. But standards of review exist for a reason—to make certain that the decisions of the trial court, which is best placed to make findings of fact and law having heard the evidence directly, are not too easily changed or overturned. Unfortunately for Jabateh, this means there is now true finality regarding all of his convictions.
[1] United States v. Jabateh, 974 F.3d 281, 287 (3d Cir. 2020).
[2] Id.
[3] Appellant’s Opening Brief at 10, n. 4, United States of America v. Mohammed Jabbateh, Dkt. No. 24-3184, (3rd Cir. 2025).
Image: Mohamed Jabateh’s trial. Court sketch by Chase Walker/Civitas Maxima.
