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UNITED STATES v. RIVERA

December 18, 1995

UNITED STATES OF AMERICA against ALEX RIVERA, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 In this RICO case, the Government alleges that on April 25, 1992 defendant Alex Rivera intentionally shot Francisco Nunez in the head, murdering him. At the time, Rivera was 17 years old. He was arrested in March 1995, when he was 20 years old. Although he should have been treated as a juvenile under the Juvenile Delinquency Act (the "Act"), 18 U.S.C. §§ 5031-5042, he was prosecuted as an adult because the Assistant United States Attorney then handling the matter made an inadvertent mistake when calculating his age.

 Although Rivera's rights under the Act were indeed violated, his motion to dismiss the indictment is denied. The Government will be required, however, to proceed against Rivera under the Act, for he cannot be deprived of his rights under the Act simply because a prosecutor made a mathematical error.

 BACKGROUND

 A. The Shooting1

 On April 25, 1992, Rivera, Angel Alberto Then, Raul Cruz, Julio Morales and another individual commenced a search for Francisco Nunez. They were looking for Nunez to kill him in retaliation for purportedly stealing drugs and/or money from an organization engaged in the sale of narcotics. Then and Morales were involved with the organization in the selling of drugs. Morales recruited Rivera and Cruz to assist in the murder of Nunez.

 At approximately 6:30 p.m., Rivera and Cruz found Nunez on St. Nicholas Avenue, between 191st and 192nd Streets, talking on a public telephone. Rivera walked up to Nunez and shot him in the head, killing him. Rivera then fled in a car driven by Cruz.

 At the time, Rivera was 17 years old.

 B. The Prosecution

 In March 1995, Rivera was arrested on a complaint that charged him with murdering Nunez. He was then 20 years old. The Assistant United States Attorney assigned to the case at the time made a mistake in his subtraction and miscalculated Rivera's age, erroneously concluding that he was 21. Accordingly, Rivera was treated as an adult.

 Rivera was thereafter indicted with Angel Alberto Then and Raul Cruz under the Racketeer Influenced and Corrupt Organizations Act, indictment number 95 Cr. 206 (the "original indictment"), for Nunez's murder. Then was also charged with certain drug violations.

 Several days before the trial was to begin, the Government discovered the error in the calculation of Rivera's age and moved to dismiss the original indictment without prejudice because Rivera had been indicted as an adult for a crime allegedly committed when he was a juvenile. On September 22, 1995, I granted the motion by oral order, without prejudice to any claims that Rivera might have with respect to his rights under the Act. A new indictment was filed, number ...


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