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United States v. Cruz


August 10, 2007


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Defendant Angel Mateo de la Cruz ("Mateo")*fn1 , proceeding pro se in the instant motion, moves to dismiss the instant one-count indictment ("Indictment"), filed on November 27, 2006, charging him with illegally reentering the United States in violation of section 1326(a) of Title 8 of the United States Code ("section 1326(a)"). Mateo seeks dismissal on four separate grounds, claiming that: (1) the Indictment was not filed within the five-year statute of limitations; (2) the Indictment was not filed within thirty days of Mateo's arrest; (3) the Indictment violates the Supreme Court's decision in Apprendi v. New Jersey and; (4) Mateo's 1994 deportation order was invalid because the earlier removal proceedings violated his due process rights. For the following reasons, defendant's motion is denied.


Mateo entered the United States in 1983 on a B-2 Visa, which is "issued to non-immigrant alien visitors for pleasure not to exceed three months."*fn2

Mateo remained in the United States after the expiration of the B-2 Visa without the authority of the United States Immigration and Naturalization Service ("INS").*fn3

On July 13, 1987, Mateo was convicted of attempted murder in the second degree in New York Supreme Court, Bronx County under the alias of "Cesar Sanchez," and was subsequently sentenced to a term of imprisonment of five to fifteen years.*fn4 On December 14, 1990, Mateo was released pursuant to a court-ordered discharge.*fn5 On July 10, 1992, Mateo was again convicted in New York State Supreme Court, Bronx County, of robbery in the first degree, again under the alias of "Cesar Sanchez," resulting in a sentence of three to nine years.*fn6

In July 1993, the INS learned through the New York State Prison Inmate Locater that Mateo was incarcerated at the Attica Correctional Facility ("Attica") under the alias "Cesar Sanchez."*fn7 On June 10, 1994, the INS began deportation proceedings, issued a warrant for Mateo's arrest, and served him with an Order to Show Cause and Notice of Hearing ("OSC").*fn8 The alleged basis for deportation included both the 1987 attempted murder conviction and the 1992 robbery conviction.*fn9

On August 22, 1994, Mateo responded by letter to the OSC under the alias of "Cesar Sanchez."*fn10 In that letter, Mateo stated he would consent to deportation.*fn11 Subsequently, Mateo was transferred from Attica to Downstate Correctional Facility for a deportation hearing, which was held on September 28, 1994.*fn12 At that hearing, Mateo stated that he wanted to proceed without an attorney.*fn13 Thereafter, the Immigration Judge ("IJ") determined that Mateo was deportable based on the charges described in the OSC.*fn14 The IJ signed a Final Order of Removal that day. Mateo was informed of his right to appeal, which he voluntarily and knowingly waived.*fn15

On November 14, 1994, a Warrant of Deportation was issued pursuant to the Final Order.*fn16 On December 5, 1994, Mateo was deported to the Dominican Republic.*fn17 In 1995, following his deportation, Mateo illegally re-entered the United States.*fn18 On October 9, 2001 Mateo was arrested by the NYPD under the alias of "Jose Pantoja."*fn19 On September 13, 2006, the NYPD notified the Immigration and Customs Enforcement's ("ICE") Law Enforcement Support Center ("LESC") that an internal database search indicated the possibility that Mateo, under the alias of "Jose Pantoja," was a previously deported alien.*fn20 On September 14, 2006, pursuant to an ICE detainer, Mateo was transferred to ICE custody.*fn21 The September 28, 1994 Final Order of Removal was then re-instated while Mateo remained in ICE custody pending deportation.*fn22 On September 19, 2006, Mateo signed a written Miranda warning and waiver form, and was subsequently interviewed by ICE officials.*fn23 During the interview, Mateo admitted that previously he had been deported from the United States and that he had reentered the country without permission.*fn24

On November 27, 2006, the Indictment was filed in one count: charging Mateo, a native and citizen of the Dominican Republic, with illegally reentering the United States from on or around September 13, 2006, in violation of section 1326(a).*fn25 On December 5, 2006, Mateo was arrested, arraigned, and placed in federal custody.*fn26


Indictments are governed by Federal Rule of Criminal Procedure 7(c), which requires that an indictment contain a "plain, concise and definite written statement of the essential facts constituting the offense charged."*fn27 "It is well settled that 'an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'"*fn28 In evaluating a motion to dismiss an indictment under Rule 12, a court must treat the allegations in the indictment as true.*fn29


A. Statute of Limitations

Although there is no statutory limitations period for particular offenses, "a 'catchall' statute operates" to supply a five-year statute of limitations for non-capital offenses.*fn30 That catchall statute, section 3282 of Title 18 of the United States Code, provides, in pertinent part: "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed."*fn31 "Statutes of limitations in criminal cases normally begin to run when the crime is 'complete.'"*fn32

An offense committed under section 1326 is complete upon the occurrence of one of three events: the alien (i) enters; (ii) attempts to enter; or (iii) is "found in" the United States.*fn33 The offense of being "found" in the United States "is not complete until the authorities both discover the illegal alien in the United States . . . and know, or with the exercise of diligence typical of law enforcement authorities could have discovered, the illegality of his presence."*fn34 The Court of Appeals for the Second Circuit has held that the "found in" provision targets instances where a deported alien enters this country "'surreptitious[ly]'" or "'by means of specious documentation that conceals the illegality of his presence.'"*fn35 The Second Circuit has also held that knowledge by state officials about a defendant's presence in the United States cannot be imputed to the federal government.*fn36

B. Timeliness Under the Speedy Trial Act

The Speedy Trial Act establishes time limits for the completion of various stages of a federal criminal prosecution.*fn37 Under the statute, subject to certain exclusions of time, an indictment must be filed within thirty days after a defendant's arrest.*fn38 Further, "it is well-settled that the statutory time limits imposed by the Speedy Trial Act begin to run after the federal arrest, and not after the preceding state arrest and indictment."*fn39

C. Aggravated Felony Sentencing Enhancement

In Apprendi v. New Jersey, the Supreme Court stated that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."*fn40 The Court "carved out an exception applicable to violations of § 1326 by stating the Apprendi requirement is applicable to facts '[o]ther than the fact of a prior conviction . . . ."*fn41

Further, the court in Almendarez-Torres v. United States held that "§ 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a) and merely increases the authorized prison term for an unlawfully reentering alien based on his predeportation conviction for an aggravated felony."*fn42

D. Collateral Attack on Prior Deportation Proceedings

An alien can collaterally attack an underlying deportation order in a subsequent criminal case for illegal re-entry if he satisfies three requirements.*fn43

The Supreme Court has held that "a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review," but declined "to enumerate which procedural errors are so fundamental that they may functionally deprive the alien of judicial review."*fn44

Congress codified the holding in Mendoza-Lopez by amending the illegal re-entry statute as follows:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that-(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.*fn45


A. Statute of Limitations

Mateo's prior arrest by state and local authorities, where he admittedly provided false information, did not provide constructive knowledge of his presence to federal immigration authorities.*fn47 Further, Mateo was not "found" for purposes of the statute of limitations any time prior to September 13, 2006, when the INS was formally alerted to Mateo's presence in the country. Thus, the November 27, 2006 Indictment was filed well within the statutory limitations period.

Nonetheless, the question as to when the federal authorities could have, with the exercise of reasonable diligence, discovered his presence in the United States still remains. Yet, that question must await defendant's criminal trial on the instant Indictment, where the Government will bear the burden of proving every element of the offense beyond a reasonable doubt.

B. Speedy Trial Act

Section 3161(b) is not applicable to Mateo's case. The thirty-day period to serve an indictment runs from a federal, not state, arrest. Thus, Mateo's October 9, 2001 arrest by the NYPD did not, as he suggests, trigger the Government's obligation under section 3161(b). On the contrary, his December 5, 2006 arrest by federal authorities occurred after he was indicted, and was therefore timely.

C. Aggravated Felony Enhancement

Mateo argues that the Indictment must be dismissed on the ground that section 1326(b)(2), which authorizes a maximum prison term of twenty years for a person whose deportation followed a conviction for an aggravated felony, sets out an offense that is different from the offense described in section 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. This claim must be rejected in light of controlling precedent in this Circuit.

In United States v. Latorre-Benavides, the Second Circuit held that section 1326(b) does not create a separate offense, but that section 1326(b) is a "penalty provision with respect to a violation of" section 1326(a).*fn48 Thus, Mateo's claim that the Indictment should be dismissed based upon an unconstitutional sentencing enhancement is denied.

D. Collateral Attack on Prior Deportation Hearings

Mateo is foreclosed from now mounting a collateral attack on his prior deportation proceeding. Mateo fails to satisfy any of the prerequisites set forth in section 1326(d) and Mendoza-Lopez.

Mateo seeks to be excused from failing to exhaust his administrative remedies because he claims he received insufficient notice of the deportation proceeding, rendering his waiver of appeal invalid. However, Mateo's August 22, 1994 letter to the INS, sent one month after the INS forwarded the OSC to Attica, is evidence that Mateo did, in fact, receive the requisite documents in a timely manner. Additionally, his waiver of appeal during the deportation proceeding appears both knowing and intelligent.*fn49 The IJ fully informed Mateo that he had the right to be represented by an attorney and the right to appeal his final deportation order, both of which Mateo declined.

Even if Mateo had exhausted his administrative remedies, he fails to demonstrate that he was denied judicial review. Mateo's claim, in substance, asserts that because he inadvertently waived his right to appeal, he was denied the opportunity to raise a claim under section 212(c) of the Immigration and Nationality Act.*fn50 "In order to qualify for Section 212(c) relief prior to 1996, an alien had the burden of proving, inter alia, that: (1) he was lawfully admitted as a permanent resident of the United States; (2) he had an unrelinquished domicile of seven consecutive years; and (3) he had not committed an aggravated felony for which he had served a term of imprisonment of at least five years."*fn51 Mateo was not a lawfully admitted permanent resident: he admits that he remained in the United States illegally after his B-2 Visa expired. Thus, Mateo was statutorily precluded from raising a claim under section 212(c). Because the relief Mateo claims he was deprived of was not even available to him, Mateo fails to demonstrate that he was denied judicial review.

Lastly, Mateo fails to establish that entry of the deportation order was fundamentally unfair. To demonstrate that a deportation hearing was fundamentally unfair, Mateo must show: (1) that there was a due process error in the proceedings (that the proceedings did not "'comport[] with the basic requirements of due process'")*fn52 ; and (2) that he was prejudiced by the error.*fn53 Even if there were error in the proceeding,*fn54 Mateo has failed to demonstrate that he suffered any prejudice: nothing in the record indicates that Mateo would have obtained relief from deportation even if he had appealed because he was not eligible for relief under section 212(c).*fn55 VI. CONCLUSION For the above reasons, defendant's motion to dismiss the Indictment is denied. The Clerk of the Court is directed to close this motion. A conference is scheduled for August 20, 2007 at 4:30 p.m. SO ORDERED Shira A. Scheindlin, U.S.D.J.

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