United States v. Dekelaita

• Decision Date: 12 June 2019
• Docket Number: Case No. 18 C 6682
• Citation: 391 F.Supp.3d 866
• Parties: UNITED STATES of America, Respondent, v. Robert DEKELAITA, Movant.
• Court: U.S. District Court — Northern District of Illinois

391 F.Supp.3d 866

UNITED STATES of America, Respondent,

v.Robert DEKELAITA, Movant.

Case No. 18 C 6682

United States District Court, N.D. Illinois, Eastern Division.

Signed June 12, 2019

AUSA, Andrianna Deanne Kastanek, Lindsay C. Jenkins, United States Attorney's Office (NDIL-Chicago), Chicago, IL, for Respondent.

Robert DeKelaita, Des Plaines, IL, pro se.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In May 2016, a jury found Robert DeKelaita, a lawyer concentrating his practice in immigration law, guilty of one count of conspiracy to commit asylum fraud and three counts of making false statements on asylum applications. After trial, DeKelaita moved for a judgment of acquittal, a motion the Court granted with respect to the false statement counts but not the conspiracy count. DeKelaita now moves under 28 U.S.C. § 2255 to set aside his conviction and sentence on the conspiracy charge. He contends that (1) critical witnesses received undisclosed benefits for their testimony, (2) certain inadmissible hearsay was improperly admitted into evidence, and (3) subsequent developments disprove the existence of a conspiracy. For the reasons below, the Court overrules DeKelaita's second and third claims but orders an evidentiary hearing under 28 U.S.C. § 2255(b) on his claim regarding undisclosed witness benefits.

Background

Robert DeKelaita worked as an attorney specializing in immigration law. He focused a significant portion of his practice on assisting Assyrian or Chaldean Christians from Muslim-majority countries in applying for asylum protection in the United States. Some of the applicants he assisted likely were not eligible for asylum, however, and between 2000 and 2009 DeKelaita engineered and executed a scheme whereby he and his colleagues—interpreters and associate attorneys—fabricated evidence to support the asylum applications.

In September 2014, after several years of investigation, DeKelaita was charged with several offenses related to asylum fraud. Two superseding indictments followed, the second of which, filed in August 2015, alleged one count of conspiracy to commit asylum fraud, six counts of making false statements on asylum applications, and one count of conspiracy to commit marriage fraud. After the Court denied DeKelaita's motion to dismiss, the case went to trial on April 19, 2016. At the close of evidence on May 6, the prosecution moved to voluntarily dismiss three of the false statement counts (counts 2, 3, and 4). The jury deliberated on the remaining counts.

On May 9, the jury returned a unanimous verdict of guilty with respect to the asylum conspiracy count (1) and the remaining false statements counts (5, 6, and 7), and a verdict of not guilty as to the marriage fraud conspiracy count (8). On the false statements counts, the jury made specific findings regarding which statements the government had proven were knowingly false. DeKelaita moved for a judgment of acquittal or for a new trial with respect to the counts on which he was convicted. The Court granted the motion for judgment of acquittal on the false statement counts because the false statements the jury found DeKelaita had made were not material and thus were insufficient to support a conviction. See United States v. DeKelaita (DeKelaita I ), No. 14 CR 497, 2017 WL 7788175, at *7 (N.D. Ill. Feb. 17, 2017). The Court denied DeKelaita's motion with respect to the conspiracy count. See id.

DeKelaita appealed, arguing in his briefs to the Seventh Circuit that there was insufficient evidence to support his conviction for conspiracy. Specifically, he argued that there was no evidence of a single overarching conspiracy to commit asylum fraud but rather, if anything, a series of smaller conspiracies involving each specific fraudulent application. The Seventh Circuit affirmed the conviction, reasoning that this distinction was inconsequential because, whether there was a single conspiracy or a number of hub-and-spoke conspiracies, DeKelaita was indisputably the hub and therefore criminally responsible. See United States v. DeKelaita (DeKelaita II ), 875 F.3d 855, 858 (7th Cir. 2017).

DeKelaita now moves under 28 U.S.C. § 2255 to set aside his conviction and sentence.

Discussion

Under 28 U.S.C. § 2255, a court may vacate, set aside, or correct a sentence imposed in violation of the laws of the United States or otherwise subject to collateral attack. 28 U.S.C. § 2255(a). But such relief is appropriate "only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently resulted in the complete miscarriage of justice." Harris v. United States , 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation marks omitted). And a court may grant relief under section 2255 only when a movant is "in custody." 28 U.S.C. § 2255(a).

At the threshold, the government suggests that this motion is moot because DeKelaita was released from Bureau of Prisons confinement in February 2019 and is therefore no longer in custody. That contention is contrary to controlling authority. First, "custody" is construed broadly for the purposes of section 2255 to include terms of bond or supervised release. See Virsnieks v. Smith , 521 F.3d 707, 717-18 (7th Cir. 2008). DeKelaita is subject to one year of supervised release following the end of his prison term, meaning that he will remain in custody for the purposes of the statute until February 2020. Moreover, even if DeKelaita were not currently serving a term of supervised release, the motion would nevertheless satisfy the "custody" requirement because that determination relates back to the date on which the motion was filed. See Spencer v. Kemna , 523 U.S. 1, 6, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (holding, in the analogous context of section 2254, that the habeas corpus applicant "was incarcerated ... at the time the petition was filed, which is all the ‘in custody’ provision ... requires"); Torzala v. United States , 545 F.3d 517, 521 (7th Cir. 2008) (holding, under section 2255, that the movant "was in custody when he filed the motion, and that is all that is required to be ‘in custody’ under the statute"); see also Maleng v. Cook , 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam); Carafas v. LaVallee , 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) ; Ryan v. United States , 688 F.3d 845, 848 (7th Cir. 2012) ; United States v. Payne , 741 F.2d 887, 890 (7th Cir. 1984) ; Gates v. United States , 515 F.2d 73, 76 (7th Cir. 1975). DeKelaita filed this motion on October 1, 2018, when he was undisputedly still imprisoned. The Court therefore overrules the government's mootness argument.

DeKelaita's motion includes three bases for relief. First, he argues that several of the prosecution's key witnesses were conferred benefits for their testimony that were undisclosed to the defense or the jury in violation of his constitutional rights. Second, DeKelaita argues that inadmissible hearsay testimony was improperly presented to the jury and, in passing, that his attorney was constitutionally deficient for failing to object to the evidence. Third, he contends that the two attorneys with whom the jury found he conspired to commit asylum fraud have not been subject to professional discipline in relation to the conspiracy and argues that this conclusively refutes the conspiracy's existence.

A. Undisclosed witness benefits

DeKelaita contends that a number of witnesses who testified at his trial were promised benefits in exchange for their testimony that were improperly concealed from him, his counsel, and the jury. Specifically, he points to three of his former clients—Rafal Khizme, Nahal Najam, and Hilal Albqal—who he says admitted during their testimony to committing asylum fraud but then faced no consequences. DeKelaita notes that under the asylum statute, a migrant who has been found by immigration authorities to have "knowingly made a frivolous application for asylum ... shall be permanently ineligible for any [immigration] benefits." 28 U.S.C. § 1158(d); see also Pavlov v. Holder , 697 F.3d 616, 617-18 (7th Cir. 2012). DeKelaita contends that the fact that Khizme, Najam, and Albqal effectively admitted during their testimony to having made fraudulent asylum applications but have been allowed to remain in the United States indicates that the prosecution (expressly or perhaps implicitly) offered them undisclosed benefits in exchange for their testimony. Indeed, by DeKelaita's accounting, Khizme was already in removal proceedings at the time of her testimony in this case, but those proceedings were later administratively terminated. This, he contends, strongly supports an inference of an undisclosed quid pro quo.

Although DeKelaita does not expressly make the connection, the Court construes his claims as arising under the Fifth Amendment and the Supreme Court's rulings in Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In Napue , the Supreme Court held that it is a violation of the Due Process Clause for the government to solicit or permit false evidence to be presented to the jury—even if the evidence "goes only to the credibility of the witness." See Napue , 360 U.S. at 269, 79 S.Ct. 1173 ; see also United States v. Cosby , 924 F.3d 329, 336 (7th Cir. 2019) (stating the applicable standard). Brady , in turn, stands for the proposition that the government's failure to make available "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87, 83 S.Ct. 1194. In Giglio , the Supreme Court extended Brady to circumstances where the government promises benefits to a witness but fails to disclose those benefits to...