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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.'"*f ...

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