United States v. Harvey

12-1490-cr
United States v. Harvey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Submitted: June 19, 2013 Decided: March 26, 2014)
Docket No. 12-1490-cr
________________________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. -
GODFREY EMMANUEL HARVEY,
Defendant-Appellant.
________________________________________________________________________
Before:
STRAUB, HALL, and CHIN, Circuit Judges.
Appeal from the March 30, 2012 judgment of the United States District Court for the
Southern District of New York (Seibel, J.), convicting defendant-appellant, following a jury
trial, of one count of illegal re-entry into the United States after having been deported due to
his conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On
appeal, defendant-appellant argues that the government failed to prove his physical
departure from the United States after he was ordered deported in 1992 and therefore the
evidence was insufficient to show he illegally “re-entered” the country. We hold that a valid
warrant of deportation executed by the immigration authorities certifying that a defendant
was deported on a given date is sufficient to prove that the defendant was, in fact, removed
from the country on that date. Such was the case here, and sufficient evidence, therefore,
supported defendant-appellant’s illegal re-entry conviction. We AFFIRM.
AFFIRMED.
ROBERT J. BOYLE, Law Office of Robert J. Boyle, New
York, NY, for Defendant-Appellant Godfrey Emmanuel
Harvey.
ANDREW B. BAUER and BRENT S. WIBLE, Assistant
United States Attorneys, for Preet Bharara, United
States Attorney for the Southern District of New
York, New York, NY, for Appellee United States of
America.
PER CURIAM:
Defendant-Appellant Godfrey Emmanuel Harvey, a citizen of Jamaica, challenges the
sufficiency of the evidence supporting his conviction for illegal re-entry into the United
States after he was deported because of an aggravated felony conviction. Harvey’s sole
argument on appeal is that the government failed to prove his physical departure from the
United States on a March 7, 1992 airline flight from John F. Kennedy International Airport
(“JFK”) to Kingston, Jamaica. To prove Harvey left the country, the government relied on a
1992 warrant of deportation prepared by an immigration official, which indicated that the
official witnessed Harvey depart on the March 1992 flight. That official was unavailable to
testify at Harvey’s October 2011 trial for illegal re-entry, and the government did not present
any other direct evidence that Harvey left the United States in 1992. We hold today that
such additional evidence was unnecessary: the 1992 warrant of deportation, coupled with
testimony concerning the deportation procedures followed at that time, was sufficient to
permit a rational juror to conclude that Harvey left the country on the date specified in the
warrant. Accordingly, we AFFIRM the judgment of the district court.
BACKGROUND
Harvey first entered the United States in 1988 through Miami, Florida. He
subsequently was convicted of a crime constituting an aggravated felony under the
immigration laws and, in December 1991, an immigration judge ordered him deported.
2
Some twenty years later, in May 2011, immigration authorities apprehended Harvey in the
Southern District of New York and charged him with one count of illegal re-entry after
deportation for an aggravated felony.
The matter proceeded to trial in October 2011. To establish that Harvey left the
country, the government introduced a Form I-205 warrant of deportation dated March 7,
1992 and executed by Supervisory Detention Enforcement Officer David R. Thompson of
the (former) Immigration and Naturalization Service. The warrant indicated that Officer
Thompson witnessed Harvey leave the country that morning on American Airlines flight
1193, which was bound for Kingston, Jamaica. Harvey stipulated at trial that the
deportation warrant bore his signature and fingerprints.
Officer Thompson died before Harvey’s October 2011 trial and therefore was
unavailable to testify. Instead, the government offered the testimony of Special Agent
William Sansone of the Department of Homeland Security, Homeland Security
Investigations, who explained the deportation procedures in effect at the time of Harvey’s
1992 deportation. He testified that, when a person was deported from the United States via
airplane, the immigration officer executing the deportation escorted the deportee to his seat
on the aircraft, ensured that the interior of the aircraft was secure, returned to the jetway,
and then remained at the aircraft door until the aircraft pulled away. The immigration
official then watched the aircraft until it was out of sight, at which point the official signed
the deportation warrant. Special Agent Sansone could not recall whether he had participated
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in Harvey’s deportation, and the government did not introduce any other direct evidence of
Harvey’s departure from the country.1
Following the close of the government’s evidence, Harvey moved for a judgment of
acquittal, arguing that the government’s evidence failed to establish that he ever left the
country. The district court denied the motion, ruling, inter alia, that there was “no particular
reason to doubt the regularity of the procedures” by which Harvey was deported. The jury
returned a guilty verdict on November 1, 2011, and, in March 2012, the district court
sentenced Harvey principally to 60 months’ incarceration. Harvey timely appealed the
resulting March 30, 2012 judgment of conviction.
DISCUSSION
Although we review sufficiency of the evidence claims de novo, see United States v.
Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), a defendant mounting such a challenge “bears a
heavy burden,” United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (citation and quotation
marks omitted). This is because, in assessing whether the evidence was sufficient to sustain
a conviction, “‘we view the evidence in the light most favorable to the government, drawing
all inferences in the government’s favor and deferring to the jury’s assessments of the
witnesses’ credibility.’” Sabhnani, 599 F.3d at 241 (quoting United States v. Parkes, 497 F.3d
220, 225 (2d Cir. 2007)). Following this review, we will sustain the jury’s verdict if “any
1 The government did introduce additional circumstantial evidence that Harvey left the
country, including: (1) Harvey’s stipulation that he was born on May 20, 1971 and, between
1992 and 2011, he occasionally identified himself as “Delandre Johnson”; (2) airline records
showing that, in November 1995, a person by that name and with Harvey’s birth date flew
from Kingston, Jamaica to New York City; and (3) the testimony of Harvey’s former
girlfriend that he told her sometime in 1999 that he had previously been deported.
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rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
To sustain Harvey’s illegal re-entry conviction, the government was required to prove
at trial that Harvey (1) is an alien (2) who was deported (3) and thereafter re-entered the
United States (4) without the requisite authority to do so. See 8 U.S.C. § 1326(a). Only the
second element—whether he was physically deported—is at issue here. On this point,
Harvey argues that, aside from the deportation warrant, the government did not introduce
any documentary or testimonial evidence indicating that he was on the aircraft when it left
JFK or that he entered Jamaica after the flight landed. See Appellant Br. at 15-16. He
further contends that the deportation warrant alone was insufficient to establish the fact of
his departure because it contained no indication that Officer Thompson actually followed
the deportation procedures outlined by Special Agent Sansone at trial. Id. at 16-18.
We disagree and hold, along with every other court to have considered the issue, that
a properly executed warrant of deportation, coupled with testimony regarding the
deportation procedures followed at that time, is sufficient proof that a defendant was, in
fact, physically deported from the United States. See United States v. Garcia, 452 F.3d 36, 43-
44 (1st Cir. 2006); United States v. Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005); see
also United States v. Nelson, 528 F. App’x 314, 315 (4th Cir. 2013) (summary order); United
States v. Avila-Sifuentes, 237 F. App’x 971, 972 (5th Cir. 2007) (summary order). Here, the
warrant of deportation specifically indicated that Officer Thompson “witnessed” Harvey’s
departure, and set forth the date, flight number, and time it was effected. In addition,
Harvey stipulated that he signed the warrant and that it contained his fingerprints. These
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facts, coupled with Sansone’s testimony regarding the deportation procedures in effect in
1992, were a sufficient basis from which a reasonable juror could conclude, beyond a
reasonable doubt, that Harvey physically left the United States on March 7, 1992. Cf. Garcia,
452 F.3d at 43-44 (warrant of deportation sufficient to establish defendant’s departure from
the country even though the government “failed to call any witness who personally saw
[him] . . . depart from the United States”).2
CONCLUSION
Having concluded that the evidence was sufficient to establish Harvey’s guilt beyond
a reasonable doubt, we AFFIRM the judgment of the district court.
2 Harvey does not argue on appeal that the introduction of the warrant of deportation
violated his rights under the Confrontation Clause because Officer Thompson was not
available for cross-examination. See generally Crawford v. Washington, 541 U.S. 36 (2004). We
therefore express no views on this issue, pausing only to note that numerous courts have
held that warrants of deportation are nontestimonial and therefore admissible despite the
Supreme Court’s decision in Crawford. See, e.g., Garcia, 452 F.3d at 41-42; United States v.
Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006); United States v. Cantellano, 430 F.3d 1142,
1145 (11th Cir. 2005); Bahena-Cardenas, 411 F.3d at 1074-75.
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