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UNITED STATES v. COOKE

April 7, 1994

UNITED STATES OF AMERICA
v.
KENNETH COOKE



The opinion of the court was delivered by: NORMA L. SHAPIRO

 NORMA L. SHAPIRO, J.

 Defendant has been indicted for reentering the United States, without having obtained prior permission of the Attorney General, after having been arrested and deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was ordered deported after a hearing on December 18, 1991. The deportation order was based on a prior misdemeanor conviction for possession of marijuana. On June 24, 1992, defendant pled guilty to the felony of attempted murder and received a suspended sentence of nine years. Defendant departed from the United States pursuant to the order of deportation on December 11, 1992. Defendant has moved to quash the indictment. *fn1"

 The issue is the meaning of "deportation" in the relevant statute. Defendant contends that deportation is the legal act of adjudication ordering an individual to leave the country; under this reading of the term, defendant could not be validly charged under § 1326(b)(2) because his "deportation" would have been before, not after, his felony conviction for attempted murder. Conversely, the Government argues that deportation is the physical departure of an alien who has been ordered to leave the country; thus, defendant's "deportation" is subsequent to his felony conviction for attempted murder, and defendant was properly indicted under § 1326(b)(2). *fn2"

 If the statute is sufficiently ambiguous, the rule of lenity requires resolution of doubt in the defendant's favor. The rule of lenity is based on "'the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.'" United States v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971) (quoting Henry J. Friendly, Benchmarks 209 (1967)). It applies in those situations "in which a reasonable doubt persists about a statute's intended scope even after resort to 'the language and structure, legislative history, and motivating policies' of the statute. Moskal v. United States, 498 U.S. 103, 108, 112 L. Ed. 2d 449, 111 S. Ct. 461 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 65 L. Ed. 2d 205, 100 S. Ct. 2247 (1980); United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994). Although the use of "deportation" in the statute and its legislative history is not entirely unambiguous, consideration of the motivating policies of § 1326 does not leave a reasonable doubt as to the scope of that section; consequently, the court will deny defendant's motion.

 
8 U.S.C. § 1326 states, in relevant part:
 
(a) Subject to subsection (b) of this section, any alien who --
 
(1) has been arrested and deported or excluded and deported, and thereafter
 
shall be fined under Title 18, or imprisoned not more than 2 years, or both.
 
(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection --
 
. . . .
 
(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, ...

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