United States v. Dekelaita, 875 F.3d 855

Background

Robert DeKelaita, an immigration attorney, prepared and submitted asylum applications for primarily Assyrian/Chaldean clients and is accused of fabricating or concealing facts to increase chances of asylum for nine clients.
He used interpreters to coach clients and to improperly translate at interviews; one interpreter (used in most early cases) and later interpreter Adam Benjamin assisted in several applications.
Indictment charged a single, long-running conspiracy to defraud the government by submitting fraudulent asylum applications. Trial produced convictions on one conspiracy count and three substantive false-statement counts tied to the last applicant, Albqal; the court later vacated the three substantive convictions.
On appeal DeKelaita argued there was a prejudicial variance between the indictment (one conspiracy) and the proof (multiple separate conspiracies) and that earlier conspiracies were time-barred under the five-year statute of limitations.
The government relied on overt acts within five years of the indictment (notably activities around Albqal’s November 2009 application and December 2009 interview) to show timeliness and to support admission of co-conspirator statements under Santiago/Cox rules.

Issues

Issue	Gov't Argument	DeKelaita's Argument	Held
Variance between indictment (one conspiracy) and proof (multiple conspiracies)	Any variance is harmless because sufficient evidence supported at least one timely conspiracy conviction	Variance prejudiced him because the government effectively joined distinct conspiracies to create a prosecutable charge	Held: No prejudicial variance — sufficient evidence supported a timely conspiracy related to Albqal’s application
Timeliness/statute of limitations (5-year bar)	Last overt acts (submission Nov. 16, 2009; prep Dec. 21, 2009; interview Dec. 22, 2009) occurred within five years of indictment, so prosecution timely	Earlier conspiracies (first eight applications) were time-barred; the ninth’s substantive conviction was vacated so no timely conspiracy remains	Held: Timely — overt acts in late 2009 satisfied the limitations period for conspiracy
Effect of acquittal on substantive counts (Albqal) on conspiracy charge	Conspiracy is the agreement itself; failure or acquittal on substantive offenses does not negate a conspiracy conviction	Acquittal on substantive charges tied to Albqal should preclude conspiracy conviction related to that application	Held: Acquittal on substantive counts does not bar conspiracy conviction; agreement alone suffices for conspiracy liability
Use of Santiago proffers / co-conspirator evidence	Santiago/Cox filings justified admission of co-conspirator statements to show conspiracy membership and scope	Government’s shifting positions (multiple vs single conspiracies) undermine the single-conspiracy theory and may have unfairly prejudiced jury	Held: Any earlier inconsistency is immaterial here because the distinction between one or several conspiracies did not prejudice DeKelaita given the evidence of a timely conspiracy

Key Cases Cited

United States v. Avila, 557 F.3d 809 (7th Cir. 2009) (variance and prejudice standard for conspiracy proof)
United States v. Flood, 965 F.2d 505 (7th Cir. 1992) (hub defendant typically implicated in each related conspiracy)
United States v. Varelli, 407 F.2d 735 (7th Cir. 1969) (warning against joining distinct conspiracies simply because one person participated in each)
United States v. Corson, 579 F.3d 804 (7th Cir. 2009) (conspiracy is the agreement itself; failure to reach objective does not negate conspiracy)
United States v. Curley, 55 F.3d 254 (7th Cir. 1995) (statute of limitations for conspiracy runs from last overt act in furtherance)
United States v. Cox, 923 F.2d 519 (7th Cir. 1991) (standards for Santiago proffers and admissibility of co-conspirator statements)
United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978) (foundational case on admission of co-conspirator statements)