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UNITED STATES v. PACHECO

October 31, 1995

UNITED STATES OF AMERICA, against ARTURO PACHECO and MARIO ALONSO QUINTERO, Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Defendants Arturo Pacheco ("Pacheco") and Mario Alonso Quintero ("Quintero") have raised three issues in their pre-trial motions. First, defendants have moved to dismiss the indictment, claiming that the statute under which they were charged, the Hostage Taking Act, 18 U.S.C. § 1203 (the "Act"), violates the Equal Protection Clause either on its face or as applied. Second, defendants have moved pursuant to Fed. R. Evid. 404(b) to exclude evidence pertaining to a narcotics transaction. Third, defendants have moved for a bill of particulars. For the reasons discussed below, these motions are denied.

 BACKGROUND

 Pacheco and Quintero are each charged with conspiracy to take a hostage and hostage taking in violation of 18 U.S.C. § 1203. According to the government, on or about February 2, 1995, DEA agents arrested Lauren Brito and charged him with selling 250 grams of heroin to a confidential informant. Subsequently, an individual contacted Brito and told him that he owed $ 16,000 for the heroin that the government seized at the time of his arrest. On March 21, 1995, four men abducted Carlos DeLeone, Brito's brother-in-law, in the vicinity of 183rd Street in Manhattan. The men took DeLeone to an apartment in Jackson Heights, New York, where Pacheco and Quintero were present. Brito was again contacted and told, in substance, that DeLeone had been abducted and would be harmed if Brito did not pay the money he owed for the heroin.

 Later that day, Brito went to a location in Jackson Heights and paid Quintero approximately $ 2,000 in cash. DeLeone was then released. On March 22, 1995, Brito returned to Jackson Heights and paid Pacheco, in Quintero's presence, $ 5,000. Brito also turned over the title to his wife's vehicle. Importantly, neither Quintero nor DeLeone are nationals of the United States.

 DISCUSSION

 A. Motion to Dismiss Indictment

 Defendants' primary contention is that the indictment should be dismissed because the Act is unconstitutional. Specifically, defendants claim that the Act violates the Equal Protection Clause because it irrationally singles out aliens for prosecution. Defendants also argue that the conduct charged is outside the scope of the Act and that the indictment's references to alienage are prejudicial.

 1. Facial Challenge

 A threshold requirement in bringing an equal protection claim based on a statutory classification is that the party alleging the violation must show that the statute, either on its face or as applied, results in members of a certain group being treated differently from other persons based on membership in that group. Jones v. Helms, 452 U.S. 412, 423-24, 69 L. Ed. 2d 118, 101 S. Ct. 2434 (1981). Once that requirement is met, the court must analyze, under the appropriate level of scrutiny, whether the distinction is justified. Plyler v. Doe, 457 U.S. 202, 217-18, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). Here, the Act treats aliens differently from United States citizens, as, in certain circumstances, particular conduct is criminal only if the perpetrator is an alien. *fn1" Thus, I must determine (1) the appropriate level of scrutiny and (2) whether the statute is proper under this level of scrutiny.

 The Equal Protection Clause affords protection to aliens just as it does to citizens. Graham v. Richardson, 403 U.S. 365, 371, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971). Nonetheless, Congress may pass legislation containing distinctions based on alienage, so long as the distinctions are reasonable. United States v. Duggan, 743 F.2d 59, 75 (2d Cir. 1984). In Mathews v. Diaz, 426 U.S. 67, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976) the Supreme Court set forth the rationale for allowing Congress to draw such distinctions:

 
the fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship . . . . For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and ...

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