United States v. Harvey
2014 U.S. App. LEXIS 5515
2d Cir.2014Background
- Defendant Godfrey E. Harvey, a Jamaican national, was ordered deported in December 1991 after an aggravated-felony conviction.
- A Form I-205 deportation warrant dated March 7, 1992, signed by Supervisory Detention Enforcement Officer David R. Thompson, stated Thompson "witnessed" Harvey depart on American Airlines flight 1193 to Kingston; Harvey stipulated his signature and fingerprints on the warrant.
- Officer Thompson was deceased at trial (Oct. 2011); the government did not produce a witness who personally observed the March 1992 departure.
- The government introduced testimony from a DHS special agent describing 1992 deportation procedures (officer escorts deportee to seat, remains at aircraft door until it departs, watches plane out of sight, then signs warrant).
- The jury convicted Harvey of illegal re-entry in violation of 8 U.S.C. § 1326(a)/(b)(2); Harvey appealed arguing insufficient evidence that he physically left the U.S. in 1992.
- The Second Circuit held that a properly executed deportation warrant, together with testimony about contemporaneous deportation procedures, sufficed to prove physical deportation and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government proved physical deportation (element of § 1326) | Government: warrant plus procedural testimony establishes removal | Harvey: warrant alone insufficient; no witness saw him board or enter Jamaica | Warrant executed by immigration officer plus testimony of routine procedures is adequate proof of physical deportation; conviction affirmed |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of the evidence review)
- United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010) (describes de novo review of sufficiency claims and standard of review favoring government)
- United States v. Heras, 609 F.3d 101 (2d Cir. 2010) (noting heavy burden on defendant challenging sufficiency)
- United States v. Garcia, 452 F.3d 36 (1st Cir. 2006) (warrant of deportation can suffice to prove physical removal)
- United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005) (same conclusion regarding deportation warrants)
- United States v. Valdez-Maltos, 443 F.3d 910 (5th Cir. 2006) (warrants of deportation treated as nontestimonial for Confrontation Clause purposes)
- United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005) (same on nontestimonial nature of deportation warrants)