The opinion of the court was delivered by: EDUARDO C. ROBRENO
The defendant stands trial for the crime of being found in the United States following deportation. Presently before the Court is the government's motion to preclude the defendant from offering evidence at trial of the invalidity of his deportation. For the reasons that follow, the Court will grant the government's motion.
The lone defendant in the present criminal action was indicted for one count of violating 8 U.S.C. § 1326(b)(2). Section 1326 criminalizes a deportee's voluntary re-entry into the United States.
Under the statute, the maximum term of imprisonment for a violation is two years, unless the deportee was convicted of a felony prior to deportation. If the deportee was convicted of a felony prior to deportation, the maximum term of imprisonment for re-entry is five years, and if the conviction was an aggravated felony, the maximum term is fifteen years. 8 U.S.C. § 1326. The indictment in the case sub judice alleges that the defendant, an alien, was convicted of an aggravated felony, arrested and deported, and subsequently found in the United States without obtaining consent to reapply for admission.
As recasted by the arguments of the parties, the issue is whether in a prosecution under 8 U.S.C. § 1326 the defendant may collaterally attack the validity of the underlying deportation based on alleged violations of due process and fundamental fairness. Before proceeding with trial, the Court held a hearing at which both parties had the opportunity to present evidence
and argument, and to make written submissions.
II. FINDINGS OF FACT
Based on the evidence presented at the hearing, the Court makes the following findings of fact:
1. The defendant is a citizen of the nation of Jamaica, and not a citizen of the United States.
2. In 1979, the defendant entered the United States without lawful inspection.
3. In 1986, the defendant pleaded guilty to one count of third-degree criminal possession of a weapon in state court in The Bronx, New York.
4. In 1987, the defendant pleaded guilty to charges of intimidation of witnesses or victims and simple assault in state court in Philadelphia, Pennsylvania.
5. In 1988, the defendant was convicted of possession of the controlled dangerous substance marijuana with intent to distribute in state court in Camden, New Jersey, though this conviction was later reversed on appeal.
6. On December 17, 1990, Special Agent Peter Podavini of the Immigration and Naturalization Service ("I.N.S.") served an Order to Show Cause and Notice of Hearing upon the defendant to show cause why ...