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.


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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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