Submitted June 19, 2013
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.
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.
Before: STRAUB, HALL, and CHIN, Circuit Judges.
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.
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. 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 in Harvey's deportation, and the government did not introduce ...