The opinion of the court was delivered by: JOHN W. DARRAH, District Judge Page 2
On October 29, 2003, the United States ("the Government") sought and
obtained a superseding indictment against Defendant, Babajide Sobitan,
also known as Paul A. Makinde. The indictment charged that Defendant, an
alien who had been previously deported and removed from the United States
on or about July 19, 1996, and whose removal was subsequent to a
conviction for an aggravated felony, knowingly and intentionally
attempted to enter the United States without previously obtaining the
express consent of the United States' Attorney General for reapplication
by the Defendant for admission into the United States, in violation of
8 U.S.C. § 1326(a)-(b)(2). On December 15, 2003, a bench trial was
This matter now comes before the Court following the presentation of
evidence. The Court has considered the evidence, including the testimony
of witnesses and exhibits, and has further considered the written
arguments of counsel for the parties and the authority cited therein. For
the following reasons, the Government has proven, beyond a reasonable
doubt, that Defendant is guilty of violating 8 U.S.C. § 1326(a)-(b)(2).
Defendant raised objections to some of the factual statements in the
Government's closing brief.
Defendant first contends that the Government's arguments that Defendant
obtained his permanent resident card fraudulently, that Defendant
fraudulently used multiple identities, and that Defendant illegally
entered the country on two occasions after obtaining his renewed
permanent resident alien card are irrelevant and inflammatory. The Court
has not drawn any such unfairly prejudicial inferences. Accordingly,
Defendant's objection is denied.
Defendant next asserts that Government Exhibits 2, 8, and 9 are
irrelevant and based on facts not admitted into evidence. The motion to
exclude these exhibits is denied.
Defendant lastly asserts the Government's claims that a deported alien
revokes the alien's permanent resident alien status and possession of a
resident alien card does not confer status as a permanent resident alien
are not supported by competent evidence in the record. However, this
statement is an accurate statement of the law. Perez-Rodriguez v.
INS, 3 F.3d 1074, 1078-79 (7th Cir. 1993).
Based on a stipulation by the parties, the Court finds the following
facts have been proven beyond a reasonable doubt.
1. Defendant Babajide Sobitan is an alien. He was born in Nigeria and
is not now, and has never been, a citizen of the United States.
2. Defendant, using the name Paul Makinde, was convicted of two
aggravated felonies, conspiracy to possess with intent to distribute and
to distribute heroin on October 16, 1990, and manufacturing and delivery
of a controlled substance and armed violence on October 11, 1991.
3. Defendant, using the name Paul Makinde, was deported from the United
States on January 19, 1996. When he was deported on January 19, 1996,
Defendant was given a copy of Government Exhibit 2 (INS Form 294, Notice
of Country to Which Deportation Has Been Directed and Penalty for Reentry
Without Permission); Government Exhibit 2 was read to him by an
immigration official, and Defendant signed the Government's retained copy
of Government Exhibit 2 with the name "Makinde."
4. On April 29, 2003, Defendant knowingly and intentionally attempted
to enter the United States at O'Hare International Airport, Chicago,
Illinois, using the name Babajide Sobitan.
The parties also stipulated that:
If called to testify at trial, Bola Aro, would testify as follows:
That she is the sister of Defendant Babajide Sobitan. She resides in
Hammond, Indiana, along with her husband Sunday Aro. She is employed as a
case manager supervisor for the Community Mental Health Counseling in
Chicago, Illinois. She is a United States citizen.
That sometime hi February 2000, her brother Babajide received a notice
in the mail sent to his residence in Dolton from the Immigration and
Naturalization Service ("INS"). This notice advised her brother that his
permanent resident alien card was due to expire, its ten year period
coming to an end. He was directed to appear at the Hammond INS office to
renew the resident alien card.
In September 2000, that she accompanied her brother Babajide to the
Hammond INS Office. At the office, he was both photographed and
fingerprinted by the INS officers in the office.
Sometime hi November 2000, Defendant Babajide Sobitan received in the
mail his replacement ...