The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
On June 4, 2008, a grand jury indicted Abderrahmane Khellil on two counts of making false statements in violation of 18 U.S.C. § 1001(a)(3). The indictment alleged in Count 1 that on June 4, 2003, Khellil knowingly made false statements in a Form I-485 Application to Register Permanent Residence or Adjust Status, submitted to the Department of Homeland Security, Immigration and Customs Enforcement (ICE), "that his place of last entry into the United States was Maryland, that his date of last arrival was December 2, 1998 and that he was not inspected by a U.S. Immigration Officer." The indictment alleged in Count 2 that on July 16, 2007, Khellil knowingly made false statements in a form AR-11 Alien's Change of Address Card "that his place of last entry into the United States was Maryland and that his date of entry into the United States was December 28, 1998."
The case was tried before a jury in late June 2009. Khellil was represented by retained counsel. The jury was instructed, without objection by either side, that to convict Khellil on Count 1, the government had to prove the following beyond a reasonable doubt:
1. The defendant knowingly made a false statement regarding his place of last entry into the United States, his date of last arrival, and/or whether he was inspected by a U.S. immigration officer.
2. The statement involved a matter within the jurisdiction of the Department of Homeland Security.
3. The statement was material.
4. The defendant acted willfully.
As to Count 2, the jury was instructed that the government had to prove the following:
1. The defendant knowingly made a false statement regarding his place of last entry into the United States and/or his date of entry into the United States.
2. The statement involved a matter within the jurisdiction of the Department of Homeland Security.
3. The statement was material.
4. The defendant acted willfully.
Jury Instructions (dkt. no. 79) at 14-15. The jury was instructed that "[a] statement is material if it had the effect of impeding, interfering with, or influencing the Department of Homeland Security in a matter the agency was considering, or if the statement had the potential or capability to do so." Id. at 16. The jury was also told that as to each count, it had to agree unanimously on the particular false statement(s) that formed the basis for a guilty verdict. Id. at 17.
The jury convicted Khellil on both counts. Because of the Court's concerns regarding the adequacy of his legal representation before and during the trial -- a matter the Court will discuss in greater detail below -- the Court made a Federal Defender Panel attorney available to Khellil in connection with post-trial motions.
Khellil's trial counsel filed a motion for a judgment of acquittal and was then granted leave to withdraw. The Federal Defender Panel attorney thereafter filed a motion for a judgment of acquittal or in the alternative for a new trial. The Court deals with both motions in this decision.
Pretrial Proceedings and the Trial
The Court begins by summarizing the evidence and other matters relevant to the present motions.
Prior to trial, the Court granted the government's motion in limine to admit a web page purportedly from a business owned by Khellil, subject to laying a proper foundation. The Court denied a motion by Khellil to preclude the government from introducing photographs of "Marco Lubrano," under whose name the government contended Khellil had entered the country. Khellil had argued that the photographs could not be the basis of a reliable identification. The Court precluded the government, however, from eliciting testimony from any of its witnesses comparing the Lubrano photos to Khellil. The Court also granted a motion in limine by Khellil to preclude testimony that someone who allegedly traveled to the U.S. with him used a false passport.
At trial, Salija Cobalovic testified that she worked as a janitor in an apartment building located on North Kedvale Street. Sometime during 2004, she found a plastic bag behind a stove in apartment 2D at 4207 North Kedvale. The bag contained a driver's license, which she took to the office of the apartment's management company, Hunter Properties. She had no knowledge of who had lived in the apartment.
Russell Pavlock, a vice president of Hunter Properties, testified that Cobalovic brought a bag with licenses or identification cards to the company's office. She gave them to company's president, who gave them to law enforcement. Pavlock conceded that he had never seen the licenses. The management company's records reflected that Abderrezak Khellil (identified by a later witness as the defendant's brother) lived at 4207 North Kedvale, apartment 2D, from December 2000 through October 2004. The company no longer has a copy of the lease for the apartment. Its records did not reflect any roommates or others living in the apartment with Abderrezak. Pavlock said, however, that did not necessarily mean that no one else lived there.
Richard Lyons, an ICE special agent, also testified. He first learned about Khellil from a source who said that Khellil was from Algeria and was operating a restaurant called Zam Zam Banquet Hall. Lyons obtained public records regarding the restaurant and learned that its officers were Abderrahmane and Abderrezak Khellil and a third man. Lyons testified that Hunter Properties produced to law enforcement a commercial driver's license and Social Security card in the name of Marco Lubrano. Lyons stated that he "received [the documents] from another federal agent on the participating task force that I was working on." Trial Tr. 69.
When the government moved the identification records into evidence, defense counsel objected on the ground that the government had not shown a proper chain of custody. The Court called a sidebar. The prosecutor argued that chain of custody is a matter affecting weight to be given to evidence of this type, not admissibility. She stated that Hunter Properties had provided the records to law enforcement and that Lyons had testified that he had received the records. The Court asked the prosecutor "[w]hat's the other agency?," referring to the "other federal agent on the participating task force" to whom Lyons had referred in his testimony. The prosecutor stated that it was the "joint terrorism task force unit," stating "that's why I did not bring it up, because I felt that was not fair." Trial Tr. 71. The Court concluded that a sufficient chain of custody had been established and admitted the records in evidence. (The Court notes that no evidence was offered or admitted, nor was there any hint, that Khellil had or has any involvement with terrorist activity or terrorist groups. Nor has the government suggested anything of the sort at any point in time.)
Lyons testified that he requested information from ICE headquarters regarding Algerians who had applied for asylum and at some point linked Marco Lubrano and Abderrahmane Khellil. He requested the immigration files on Khellil. Khellil's "A file" reflected that he had filed an asylum application (Form I-589) in San Francisco, California in or about October 1999. The application reflected that it had been prepared on Khellil's behalf by a San Francisco attorney.
The Court notes that the asylum application was not one of the documents in which Khellil was charged with making false statements -- likely because the statute of limitations had long since run by the time Khellil was indicted. The asylum application included the following questions and answers:
When did you last leave your country? (Mo/Day/Yr) 12-2-98
When did you last enter the U.S.? (Mo/Day/Yr)
Where did you last enter the U.S.?
Maryland What was your status when you last entered the U.S. (What type of visa did you have, if any)? without inspection Govt. Ex. ICE 2 at 16. The application and testimony reflected that during Khellil's interview by an immigration officer, the officer wrote in the word "Baltimore" next to the reference to Maryland and wrote in, next to the statement "without inspection," the following: "smuggled aboard a ship w/o P.P. or visa." Id.
Documents accompanying the asylum application reflected that Khellil claimed he had opened a shop in Algeria in August 1997 and, starting in July 1998, was threatened and harassed by members of the Armed Islamic Group and fled Algeria for that reason. Khellil answered "no" to a question regarding whether he had previously entered the United States. In response to a question regarding previous addresses, Khellil listed addresses in San Francisco (for January 1999 through the application date) and Algeria, but no Chicago-area addresses. The documentary evidence reflected that Khellil's asylum application was granted in or about February 2000.
Lyons testified that Khellil's "LIN" file, maintained at the immigration offices in Lincoln, Nebraska, included an application to adjust status (Form I-485), in which Khellil sought permanent resident status. The application reflected that it was filed with the INS in early June 2003. This was the document that was the subject of Count 1 of the indictment. On the form, Khellil listed his "date of last arrival" as December 2, 1998 and his "place of last entry into the U.S." as Maryland. The former entry was typed into the application; the latter was handwritten by someone not identified in the evidence presented at trial. The form listed Khellil's current address as 4207 North Kedvale, apartment 2D, Chicago -- the apartment where the Marco Lubrano driver's license had been found.
Khellil's LIN file also included an "alien's change of address card" (Form AR-11) that he submitted to U.S. Citizenship and Immigration Services (USCIS), dated July 16, 2007. This was the document that was the subject of Count 2 of the indictment. On this form, Khellil listed his "port of entry into U.S." as Maryland and his "date of entry into U.S." as December 28, 1998. The Court notes that the evidence did not reflect that either Khellil's I-485 application or his asylum application was still pending when he submitted the Form AR-11; both were adjudicated years before that.
Lyons testified that he compared photos of Khellil and Marco Lubrano and then continued his investigation. He obtained records and ran computer queries, the results of which were introduced in evidence. Lyons ran a computer query for the immigration and customs authorities' entry and exit records for Marco Lubrano and for Khellil, for the years 1982 through 2008. These records reflected an entry into the country by Marco Lubrano, an Italian citizen, on December 20, 1993 at Chicago via a "visa waiver"; no departures from the U.S. by Lubrano; and no entries or exits by Khellil. Lyons also testified that records shows that Khellil's mother entered the United States on May 16, 1997 from Algeria and reported that she would be living at 4327 North Kedvale, an address he recognized from "source information" as connected to Khellil and from Illinois Secretary of State records as connected to Lubrano.
Lyons also testified that he ran a Google search for Zam Zam Banquet Hall and located a web page including a photo that he testified appeared to be a photo of the defendant. The web site referred to "Chef Khellil" as having come to the U.S. from Italy and having over fifteen years of experience, which corresponded with the date of the entry of "Marco Lubrano" into the U.S.
Lyons also obtained records from the City of Chicago relating to a 1994 application by Marco Lubrano for a taxicab license. The records included a fingerprint card listing the same date of birth for Lubrano as the one on the driver's license found in the North Kedvale apartment. Lyons also obtained Khellil's fingerprints taken by the U.S. Marshal after his arrest in this case and forwarded both sets of fingerprints to the ICE forensic laboratory. Lyons also testified that he observed Khellil prepare handwriting exemplars, which he then forwarded to the ICE laboratory.
On cross examination, defense counsel pressed Lyons about the nationalities of the individuals he had been investigating and then asked pointedly why Lyons was interested in Algerians. The Court became concerned at this point that defense counsel's inquiry might elicit a reference to the "joint terrorism task force" that the prosecutor had mentioned at the sidebar during Lyons' direct examination. The Court called a sidebar and stated:
THE COURT: . . . based on the side bar we had earlier . . ., my concern is that you're walking down a road here which is going to result in the witness, you know, mouthing what we would call the T word . . . . You asked a question which I suspect the witness could have legitimately answered using that, and so you're skating on thin ice. You've got to be more careful. . . . When you ask somebody why you are interested in Algerians, I mean, I don't know what he's going to say, but it occurred to me that might be the answer. . . . If you want that word to come out, keep it up.
Trial Tr. 109-10. The prosecutor noted at the sidebar that "[t]he agent was assigned to the JTTF while he investigated this case, and I have not brought it out. I have been very careful." Id. 110.
After the sidebar, defense counsel did not pursue asking Lyons about why he was investigating Algerians. Almost immediately, however, she elicited from Lyons other testimony that was unquestionably inadmissible hearsay, and highly damaging hearsay to boot:
Q: And these individuals told you that a Marco Lubrano was actually Mr. Khellil that had come into the United States in 1993 with a phony Italian passport, is that right, if I remember your - -
A: Could you repeat that, please?
Q: These individuals that you spoke to - -
Q: - - told you that Mr. Khellil came into the United States as Marco Lubrano with a phony Italian passport; isn't that correct?
Trial Tr. 110-11. The Court notes that the apparent suggestion in counsel's question that Lyons has testified to these matters already (counsel's cut-off reference to "if I remember your . . .") was, quite simply, wrong. Lyons had given no such testimony on direct examination.
Counsel nonetheless continued to press the point, and Lyons repeated that he "was told it [Lubrano] was Mr. Khellil." Id. 112. The Court did not attempt to intervene at these junctures. The Court took note, however, of what appeared to be rather reckless conduct on defense counsel's part with no apparent potential upside, as well as an apparent lack of attention to or recollection of what had occurred -- or, more specifically, what had not occurred -- earlier in the trial.
Defense counsel next attempted to elicit from Lyons testimony on the unreliability or incompleteness of the entry and departure records he had testified about, but Lyons largely indicated that he lacked knowledge on that subject. She attempted to elicit from Lyons that it was possible that Lubrano could have left the country without anyone knowing, but Lyons gave a non-responsive answer that was damaging to the defense:
Q: Is it possible that Marco Lubrano left the United States, maybe even drove his taxi cab across the border to Canada, and nobody would know about it?
A: I think this form [the computer record search printout], coupled with my overall investigation from source information and City of Chicago driver's license information and Secretary of State and Social Security applications and things of that nature, led me to believe that this person was here.
Trial Tr. 119-20. Defense counsel did not move to strike the answer, despite the fact that Lyons had, in substance, rendered a likely inadmissible conclusion or opinion that Khellil had not left the U.S. during the relevant period.
Defense counsel established that Lyons had not checked with the port of Baltimore to determine whether there was a ship there on December 28, 1998 -- the "date of last entry" on Khellil's asylum application -- that might have carried the defendant to the U.S. from Algeria. By stipulation, defense counsel offered in evidence a listing of ships that entered Baltimore Harbor between December 1 and December 28, 1998. See Def. Ex. 7. One of them, the Bel Abase [sic], listed that its prior port had been in Algeria.
Defense counsel also elicited from Lyons that his review of records led him to believe that Marco Lubrano had flown to the U.S. from Copenhagen. Lyons also testified that records reflected that Abderrezak Khellil -- who defense counsel indicated in a question was the defendant's brother -- had entered the U.S. legally on a "diversity visa" and later became a citizen, and that Khellil's mother had originally entered the U.S. on a temporary visa which she obtained in Tunis, Tunisia; overstayed that visa; and now has a green card -- i.e., permanent resident status.
Defense counsel elicited from Lyons that Zam Zam's corporate records reflected that it had been incorporated in the year 2000. Counsel made reference to the information Lyons had learned from Zam Zam's web site that "Chef Khellil" had fifteen years experience. Though counsel elicited that Lyons had looked at the web site in 2008, she asked Lyons to subtract fifteen years from 2000 (the date the company was formed) and pointed out that in 1985, Khellil would have been thirteen years old -- an apparent attempt by counsel to suggest that the Zam Zam website must be referring to someone other than Khellil. Unsurprisingly, Lyons pointed out that he had subtracted from 2008 -- the year he had seen this information on Zam Zam's web site. When counsel inexplicably pressed this point, she elicited from Lyons that he thought this information "was pertinent considering that [Khellil] claimed on his asylum application that he had an ironworking company in his home country of Algeria in '97 and - - in '97-'98 time period and then came here as a stowaway on a ship, so to me it was . . . very important." Trial Tr. 140. In short, defense counsel had again elicited otherwise likely inadmissible opinion evidence, favorable to the prosecution, suggesting Khellil had not left the country during the relevant period.
Defense counsel also, for reasons unknown, pressed Lyons regarding the fact that Khellil's asylum application had not mentioned Italy. This led to the following highly damaging and otherwise inadmissible hearsay testimony by Lyons:
Other individuals in the investigation told me that they were told not to travel from that country of Italy because the authorities in that country would recognize the poor quality - - the poor quality of the passports being used, so therefore they went to a neighboring country [sic] of Denmark to travel to Chicago from Copenhagen so that the authorities, who would probably be better trained at detecting any questionable Italian passport, and that is why I was told that they did not travel from Italy on the Italian passports to Chicago, Illinois, on December 30, 1993.
Trial Tr. 142. Defense counsel did not seek to strike this testimony.
Elias Amrouch testified as a government witness. He stated that he came to the United States in 1992 on a visa and ultimately became a U.S. citizen. In 1993, he lived in Justice, Illinois with Smain Djellali and others. He believed that Khellil moved in with them in 1994. A friend of Amrouch who moved in along with Khellil had called from Italy to say they were coming. In 1994 or 1995, Amrouch, Khellil, and Amrouch's friend moved to the north side of Chicago, to the 4300 block of North Kedvale. Amrouch lived there with Khellil less than a year and then moved across the street, where he lived for about one more year. Amrouch believed Khellil worked as a cab driver. He stated that he did not know Khellil to use any other name. He believed that Khellil's brother and mother later moved in with Khellil. Amrouch last saw Khellil about five or six months before trial. Khellil never told him that he had stowed away on a boat. Defense counsel elicited on cross examination that Amrouch has trouble remembering things. He also stated that after 1997, he saw the defendant less frequently.
Smain Djellali testified that he had come to the U.S. from Algeria on a tourist visa in 1992. He overstayed the visa, applied for citizenship on an unspecified date, and was denied. He is currently in the U.S. on "parole" status and has authorization to work. In 1993, he moved to Justice, Illinois with two other men, including Amrouch. In late 1993 or early 1994, he learned that two other Algerians were coming to live with them. One of them, the defendant, introduced himself as Abderrahmane. He and the other man said they had flown to the U.S. from somewhere in Europe, perhaps Scandinavia. He recalled Khellil using another name but did not recall the name. When asked how he recalled this, Djellali testified, without objection by defense counsel, that the two men had come in on a passport in someone else's name. The Court notes that this testimony was hearsay, absent attribution of such a statement to Khellil -- an attribution that Djellali did not provide. See Trial Tr. 168.
Djellali testified that Khellil drove a taxi and that he had applied for identification documents in the U.S. Though the prosecutor did not elicit any foundational testimony regarding how Djellali knew this, defense counsel did not object to the question or move to strike the testimony. In early 1994, Djellali testified, they moved to the north side of Chicago, to different apartments; Khellil lived with Amrouch and others. Djellali still saw Khellil on occasion after that. Djellali admitted that he lived in the U.S. illegally from 1993 through 1998. His application for permanent residency status was denied in 1998 because he had been living in the country illegally (though he had, in the interim, obtained a "diversity visa"). He said he had seen Khellil very little, if at all, after 1995.
Kenneth Madsen, the Chicago Asylum Office director for USCIS, also testified as a government witness. He stated that once a person is granted asylum, he cannot be deported unless his asylum status is revoked. To file an application for asylum, a person must be physically present in the U.S. Eligibility for asylum requires that the applicant has suffered persecution in his home country or has a well founded fear of persecution there on account of race, religion, nationality, membership in a particular social group, or political opinion.
As of April 1, 1998, an applicant was required to apply for asylum within one year of his date of entry into the U.S., with some exceptions that Madsen detailed. The asylum application form requires disclosure of all of the applicant's entries into the U.S. After submitting an asylum application, the applicant is interviewed by an immigration officer.
If an applicant moves his residence during the asylum application process, Madsen testified, he is required to file a form AR-11 advising the agency (now USCIS, formerly INS) of his new address. The form includes spaces for the person's name, file number, former address, new address, and date, place, and manner of entry into the U.S. The form has to be signed by the applicant, and it contains warnings "that there are criminal penalties for failure to register and notify the service of your change of address." Trial Tr. 200. The information on the form is used to update the agency's computer database, and the card goes into the applicant's file, "but it doesn't necessarily get matched up with it." Id. The agency considers the form important "because almost all of our correspondence is by regular First Class Mail to the last known address of the alien." Id.
Madsen testified that a person granted asylum is allowed to remain in the U.S. indefinitely and is authorized to work here. Most persons granted asylum apply for and receive permanent resident status. Form I-485 is used to apply for permanent resident status. That form, Madsen testified, requires disclosure of the applicant's date and place of last entry into the U.S. Though Madsen's office does not decide I-485 applications, he testified, without objection by the defense, that an immigration officer will compare the I-485 form with other immigration records for the applicant, including his asylum file if he has one. If there is conflicting information that bears on the person's eligibility for asylum, the file will be sent to the asylum office for review, and the applicant's I-485 request will not be granted until the review is completed.*fn1
Madsen also testified that the Form AR-11 change of address card is important to the adjustment of status process. He testified that we do service by First Class Mail. So if you were to change your address and didn't inform the [S]ervice -- if we were to grant you permanent residence, the card would be sent to the incorrect address and you would have to file for a replacement card. If there was some reason that you weren't being granted and they were going to place you into removal proceedings, they would have to serve that paperwork on you by mail, and they would have no idea where you were.
On cross examination, defense counsel asked Madsen how Khellil's file had been brought to his attention and what Lyons had advised him. There was no apparent reasonable basis for defense counsel to ask this question, which plainly called for otherwise inadmissible hearsay that could not possibly help Khellil. Madsen responded that Lyons had given him information showing "various driver's licenses that were issued to the defendant and showing that he had been present in the United States prior to his application for asylum." Trial Tr. 206. Defense counsel also inexplicably asked a question that re-introduced damaging information about her client that was otherwise inadmissible hearsay:
Q: Well, what if I told you that Mr. Lyons began this investigation because two supposed individuals came forward and said that this defendant had assumed the identity of an Italian who had entered the United States illegally under a false passport?
Trial Tr. 207. Again, there was no upside for defense counsel in asking this question.
Defense counsel then went on to elicit from Madsen that as a result of review of Khellil's file, USCIS issued a notice of intent to revoke his asylum status. This was evidence the government had not offered and likely could not have introduced. Trial Tr. 207-08. See also id. 208-09 (defense counsel eliciting, via an extended question, inadmissible hearsay testimony that Lyons had "some indication that [defendant] might have assumed a different identity before"). Defense counsel also later elicited from Madsen testimony that, based on a defense motion in limine, the Court had precluded the government from introducing: Madsen's lay comparison between the photo on the "Lubrano" driver's licenses and a photo of Khellil. See Trial Tr. 223 (Q: "[W]hen Mr. Lyons presented to you those Illinois Department of Motor Vehicle documents, did you go back into your computer system to determine whether to nor there was any relationship between the name on those documents and the applicant's name in this application? A: In actuality, if I'm not mistaken, he had a copy of the driver's license with the applicant's picture that matched the file." (emphasis added)).
Madsen testified on cross examination, as he had on direct, that illegal or improper entry into the United States is not held against an applicant for asylum. Counsel went through Khellil's asylum application with Madsen. Madsen testified that Khellil had stated in the application that he last left his own country on December 2, 1998 and that he last entered the U.S. on December 28, 1998 in Maryland. His status at entry was "without inspection." The immigration officer who interviewed Khellil had written in, presumably based on the interview, that Khellil said he had entered at Baltimore and had been "smuggled on board a ship without a passport or visa." Khellil's application identified his citizenship as Algerian and his ethnic group as Berber. Counsel also reviewed with Madsen what Khellil had stated in his application about persecution while in Algeria.
Defense counsel elicited from Madsen that when an alien comes into the U.S., he fills out an I-94 card, and the bottom part of the card is given to the alien. If and when he leaves the country, the alien is "supposed to" turn the card in at departure. Madsen stated that it has only been since 2006 that USCIS has been able to verify applicants "against the entry-exit system." Trial Tr. 233. Madsen professed some lack of knowledge but agreed with counsel's statement that before the September 11, 2001 terrorist attacks, "there wasn't really a system to register anybody's departure" from the U.S. Trial Tr. 234. Madsen further testified as follows:
Q: . . . So if this individual, as Mr. Lyons presented the information to you about him having come into the United States in some false way before, there was no way to know whether that person who may have entered and been documented in a computer system ever left?
Q: So it would be an assumption on the part of anyone to think that whomever entered in 1993 stayed continuously in the United States until 1998 and after; it would be an assumption, would it not?
A: It depends on the evidence that you present.
Q: Well, but you couldn't rely on the INS records because, as you testified, there really isn't a way to document a person leaving the United States, at least not then?
A: Well, I'm just saying. So, for instance, someone had applied for asylum and they were eligible for work authorization and they renewed that work authorization year after year, you would have evidence that they were in the United States year after year. If someone applied for ...