United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Matthew F. Kennelly, United States District Judge.
2016, a jury found Robert DeKelaita, a lawyer concentrating
his practice in immigration law, guilty of one count of
conspiracy to commit asylum fraud and three counts of making
false statements on asylum applications. After trial,
DeKelaita moved for a judgment of acquittal, a motion the
Court granted with respect to the false statement counts but
not the conspiracy count. DeKelaita now moves under 28 U.S.C.
§ 2255 to set aside his conviction and sentence on the
conspiracy charge. He contends that (1) critical witnesses
received undisclosed benefits for their testimony, (2)
certain inadmissible hearsay was improperly admitted into
evidence, and (3) subsequent developments disprove the
existence of a conspiracy. For the reasons below, the Court
overrules DeKelaita's second and third claims but orders
an evidentiary hearing under 28 U.S.C. § 2255(b) on his
claim regarding undisclosed witness benefits.
DeKelaita worked as an attorney specializing in immigration
law. He focused a significant portion of his practice on
assisting Assyrian or Chaldean Christians from
Muslim-majority countries in applying for asylum protection
in the United States. Some of the applicants he assisted
likely were not eligible for asylum, however, and between
2000 and 2009 DeKelaita engineered and executed a scheme
whereby he and his colleagues-interpreters and associate
attorneys-fabricated evidence to support the asylum
September 2014, after several years of investigation,
DeKelaita was charged with several offenses related to asylum
fraud. Two superseding indictments followed, the second of
which, filed in August 2015, alleged one count of conspiracy
to commit asylum fraud, six counts of making false statements
on asylum applications, and one count of conspiracy to commit
marriage fraud. After the Court denied DeKelaita's motion
to dismiss, the case went to trial on April 19, 2016. At the
close of evidence on May 6, the prosecution moved to
voluntarily dismiss three of the false statement counts
(counts 2, 3, and 4). The jury deliberated on the remaining
9, the jury returned a unanimous verdict of guilty with
respect to the asylum conspiracy count (1) and the remaining
false statements counts (5, 6, and 7), and a verdict of not
guilty as to the marriage fraud conspiracy count (8). On the
false statements counts, the jury made specific findings
regarding which statements the government had proven were
knowingly false. DeKelaita moved for a judgment of acquittal
or for a new trial with respect to the counts on which he was
convicted. The Court granted the motion for judgment of
acquittal on the false statement counts because the false
statements the jury found DeKelaita had made were not
material and thus were insufficient to support a conviction.
See United States v. DeKelaita (DeKelaita
I), No. 14 CR 497, 2017 WL 7788175, at *7 (N.D. Ill.
Feb. 17, 2017). The Court denied DeKelaita's motion with
respect to the conspiracy count. See id.
appealed, arguing in his briefs to the Seventh Circuit that
there was insufficient evidence to support his conviction for
conspiracy. Specifically, he argued that there was no
evidence of a single overarching conspiracy to commit asylum
fraud but rather, if anything, a series of smaller
conspiracies involving each specific fraudulent application.
The Seventh Circuit affirmed the conviction, reasoning that
this distinction was inconsequential because, whether there
was a single conspiracy or a number of hub-and-spoke
conspiracies, DeKelaita was indisputably the hub and
therefore criminally responsible. See United States v.
DeKelaita (DeKelaita II), 875 F.3d 855, 858
(7th Cir. 2017).
now moves under 28 U.S.C. § 2255 to set aside his
conviction and sentence.
28 U.S.C. § 2255, a court may vacate, set aside, or
correct a sentence imposed in violation of the laws of the
United States or otherwise subject to collateral attack. 28
U.S.C. § 2255(a). But such relief is appropriate
"only for an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which
inherently resulted in the complete miscarriage of
justice." Harris v. United States, 366 F.3d
592, 594 (7th Cir. 2004) (internal quotation marks omitted).
And a court may grant relief under section 2255 only when a
movant is "in custody." 28 U.S.C. § 2255(a).
threshold, the government suggests that this motion is moot
because DeKelaita was released from Bureau of Prisons
confinement in February 2019 and is therefore no longer in
custody. That contention is contrary to controlling
authority. First, "custody" is construed broadly
for the purposes of section 2255 to include terms of bond or
supervised release. See Virsnieks v. Smith, 521 F.3d
707, 717-18 (7th Cir. 2008). DeKelaita is subject to one year
of supervised release following the end of his prison term,
meaning that he will remain in custody for the purposes of
the statute until February 2020. Moreover, even if DeKelaita
were not currently serving a term of supervised release, the
motion would nevertheless satisfy the "custody"
requirement because that determination relates back to the
date on which the motion was filed. See Spencer v.
Kemna, 523 U.S. 1, 6 (1998) (holding, in the analogous
context of section 2254, that the habeas corpus applicant
"was incarcerated . . . at the time the petition was
filed, which is all the 'in custody' provision . . .
requires"); Torzala v. United States, 545 F.3d
517, 521 (7th Cir. 2008) (holding, under section 2255, that
the movant "was in custody when he filed the motion, and
that is all that is required to be 'in custody' under
the statute"); see also Maleng v. Cook, 490
U.S. 488, 490-91 (1989) (per curiam); Carafas v.
LaVallee, 391 U.S. 234, 238 (1968); Ryan v. United
States, 688 F.3d 845, 848 (7th Cir. 2012); United
States v. Payne, 741 F.2d 887, 890 (7th Cir. 1984);
Gates v. United States, 515 F.2d 73, 76 (7th Cir.
1975). DeKelaita filed this motion on October 1, 2018, when
he was undisputedly still imprisoned. The Court therefore
overrules the government's mootness argument.
motion includes three bases for relief. First, he argues that
several of the prosecution's key witnesses were conferred
benefits for their testimony that were undisclosed to the
defense or the jury in violation of his constitutional
rights. Second, DeKelaita argues that inadmissible hearsay
testimony was improperly presented to the jury and, in
passing, that his attorney was constitutionally deficient for
failing to object to the evidence. Third, he contends that
the two attorneys with whom the jury found he conspired to
commit asylum fraud have not been subject to professional
discipline in relation to the conspiracy and argues that this
conclusively refutes the conspiracy's existence.
Undisclosed witness benefits
contends that a number of witnesses who testified at his
trial were promised benefits in exchange for their testimony
that were improperly concealed from him, his counsel, and the
jury. Specifically, he points to three of his former clients-
Rafal Khizme, Nahal Najam, and Hilal Albqal-who he says
admitted during their testimony to committing asylum fraud
but then faced no consequences. DeKelaita notes that under
the asylum statute, a migrant who has been found by
immigration authorities to have "knowingly made a
frivolous application for asylum . . . shall be permanently
ineligible for any [immigration] benefits." 28 U.S.C.
§ 1158(d); see also Pavlov v. Holder, 697 F.3d
616, 617-18 (7th Cir. 2012). DeKelaita contends that the fact
that Khizme, Najam, and Albqal effectively admitted during
their testimony to having made fraudulent asylum applications
but have been allowed to remain in the United States
indicates that the prosecution (expressly or perhaps
implicitly) offered them undisclosed benefits in exchange for