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United States v. DeKelaita

United States Court of Appeals, Seventh Circuit

November 17, 2017

United States of America, Plaintiff-Appellee,
Robert DeKelaita, Defendant-Appellant.

          Argued September 19, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 497 - Matthew F. Kennelly, Judge.

          Before WOOD, Chief Judge, and Easterbrook and ROVNER, Circuit Judges.

          WOOD, CHIEF JUDGE.

         Attorney Robert DeKelaita thought he had found the perfect recipe for success: identify a niche and become the expert. But he overlooked the part about complying with the law: his niche included helping clients submit fraudulent asylum applications. When it caught up with him, the government charged him with engaging in a single, decade-long conspiracy through which he facilitated the submission of nine fraudulent asylum applications. DeKelaita contends that it failed to prove such an overarching conspiracy and that at best the evidence at trial showed only several independent conspiracies, none of which was properly subject to prosecution. Our review of the evidence convinces us otherwise. DeKelaita was charged with and convicted on only one conspiracy count. The jury had sufficient evidence to convict DeKelaita for either the charged conspiracy or a subsection of it. That is all the law requires, and so we affirm the judgment of the district court.


         One of DeKelaita's specialties was providing legal representation for recent immigrants applying for asylum. Asylum in the United States is reserved for people who are unable to return to their home country because of either persecution or a well-founded fear of persecution based on "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Asylum is unavailable if the person can be sent to a safe country that is willing to accept him or her. § 1158(a)(2)(A). Applicants for asylum must submit a form that sets forth the basis for their application and how they meet the statutory criteria. They must then sit for an interview with a U.S. Citizenship and Immigration Services officer. The Affirmative Asylum Process, U.S. Citizen Services (last visited Nov. 15, 2017), The applicant must provide a translator if one is needed. The interviewing officer eventually makes the initial determination of the applicant's eligibility. Id.

         DeKelaita's clients were primarily Assyrian or Chaldean Christians from Muslim-ruled countries, such as Iraq. Many clients had indeed suffered persecution, but their eligibility was statutorily foreclosed or doubtful because they either had already found refuge in another county or their history of persecution failed to meet the required severity for asylum in the United States. Not willing to take "no" for an answer, DeKelaita tried to improve the chances of asylum for at least nine of his clients by submitting fraudulent applications. The nature of the fraud depended on the client. For some, DeKelaita concealed evidence that the applicant already had obtained legal status in a safe country. For others, he drafted and submitted applications that either fabricated or exaggerated the extent of persecution the applicant had endured.

         At the interview stage, DeKelaita was able to ensure that applicants stuck to the script by bringing interpreters into the fold. He worked with the interpreter and client pre-interview to hammer out the narrative. When the interpreter accompanied the client to the interview, the interpreter spoon-fed answers to the applicant or "translated" incorrectly. Before 2006, the government did not have the benefit of interview monitors who might have flagged the discrepancies. Post-2006, there was a dearth of monitors who spoke Assyrian or Chaldean, the languages of DeKelaita's clients, leaving many interviews difficult, if not impossible, to review.

         Between 2000 and 2003, DeKelaita followed this template for seven applicants. In all but one case, DeKelaita employed the same interpreter. A three-year gap followed before DeKelaita worked on the next allegedly fraudulent application. His modus operandi was unchanged, though he now used the services of a different interpreter, Adam Benjamin. Another three years elapsed before DeKelaita submitted the last of the nine applications. This application, filed in November 2009 on behalf of Hilal Albqal, relied on an exaggerated history of persecution, which DeKelaita had concocted. DeKelaita again worked with Benjamin.

         At trial he was convicted on four charges: one for conspiracy to defraud the government on the asylum applications, and three for false statements he either made or induced on Albqal's application. The district court vacated the three convictions related to Albqal's application following a post-trial motion. The jury unanimously found only one false statement in Albqal's application, but the court ruled that this statement was immaterial to his receipt of asylum. That meant, the court concluded, that the government had failed to prove an element of the substantive crimes. That left standing only the conspiracy conviction.


         On appeal from that remnant of the case, DeKelaita complains of a variance between the crime the government proved and the crime with which he was indicted. To prevail on his variance argument, DeKelaita must show both that no rational trier of fact could have found that the evidence at trial proved a single conspiracy and that the variance was prejudicial. United States v. Avila, 557 F.3d 809, 815 (7th Cir. 2009). This case presents a twist on the normal situation. Ordinarily, an argument of this sort arises in a "hub-and-spoke" conspiracy-in other words, an arrangement in which there is a brain center (the hub) masterminding either contemporaneous, similar-looking conspiracies or one large conspiracy with bit players (the spokes) orbiting the hub and coordinated through it. The spokes rarely have anything to do with one another. Variance arguments are most often made by the spokes. Their complaint is typically that by charging what really was many conspiracies as one, the government put the defendant on trial for criminal conspiracies in which he played no part.

         This case is different because DeKelaita is the hub. Usually there is no need to distinguish between a single conspiracy and multiple conspiracies in a case against the hub, because no matter the relationship between alleged conspiracies, the hub is involved in each. Consequently, there is no danger of wrongfully transferring guilt based on conduct from an unconnected conspiracy. United States v. Flood, 965 F.2d 505, 509 (7th Cir. 1992). DeKelaita nonetheless argues that he was prejudiced by the joinder of the allegedly distinct conspiracies because the government should not be able to "string together ... conspiracies related in kind though they might be, when the only nexus among them lies in the fact that one man participated in ...

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