September 19, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 CR 497 -
Matthew F. Kennelly, Judge.
WOOD, Chief Judge, and Easterbrook and ROVNER, Circuit
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.
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.
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
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.
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.
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.
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.
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 ...