Evidence Was Sufficient To Prove That Defendant Was Physically Deported

United States v. Harvey, No. 12-1490-cr (2d Cir. Mar. 26, 2014), available here

Harvey was convicted after a jury trial of one count of illegal re-entry into the United States after he was deported. He argued on appeal that the evidence was insufficient to prove his physical departure from the United States. The Circuit affirmed.

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 a flight from JFK airport to Kingston, Jamaica. That official was unavailable to  testify at Harvey's 2011 illegal re-entry trial, and the government did not present any other direct evidence that Harvey left the United States in 1992.

Nevertheless, the Circuit held that the evidence permitted a rational juror to conclude that Harvey had in fact left the United States on the date specified in the warrant. The Court ruled "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."

Here, the warrant specifically indicated that an immigration official had "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 facts, the Court held, coupled with testimony regarding the deportation procedures in effect in 1992, were sufficient to show that Harvey physically left the United States on the date specified in the warrant.

Commentary: The Circuit expressly left open whether the introduction of a warrant of deportation violates a defendant's rights under the Confrontation Clause where the person who prepared the warrant is not available for cross-examination, an issue not raised by this defendant.