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United States v. Francis

United States District Court, Third Circuit

October 30, 2013



TERRENCE F. McVERRY, District Judge.

Pending before the Court are DEFENDANT'S FIRST MOTION TO DISMISS INFORMATION (ECF No. 25) and DEFENDANT'S SECOND MOTION TO DISMISS INFORMATION (ECF No. 26) filed by Defendant Raymond Paul Francis ("Francis"). The Government has filed a response to each motion (ECF Nos. 27 and 28). Accordingly, the matter has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will DENY Defendant Francis' motions.

I. Background

On March 7, 2013, one-count criminal Information (ECF No. 12) was filed against Francis, charging him with unlawfully reentering the United States after having been deported in violation of 8 U.S.C. § 1326(a). On May 6, 2013, in a proceeding before this Court, Francis waived his right to an indictment by grand jury. That same date, he entered a plea of not guilty to the Information. The following background, which is relevant for purposes of deciding Francis' motions, has been drawn from the parties' filings.

Francis, a citizen of the United Kingdom, came to the United States on or about March 3, 1993, pursuant to the Visa Waiver Program ("VWP"), [1] which allowed him to remain in this country for 90 days. In exchange, Francis was required to sign a waiver of his right to challenge any removal actions brought by the government.

Francis' overstayed his authorized stay by several years. Eventually, on March 20, 1996, he married an American citizen named Bao Chau Huu Lee ("Annie Lee"). In February 1997, Francis and Annie Lee started the formal process for adjusting Francis' status to that of a lawful permanent resident ("LPR"). To that end, Annie Lee filed a Petition for Alien Relative ("Form I-130"), attesting to the fact of their marriage, and Francis filed an Application to Adjust Status ("Form I-485").

Although the adjustment process got underway, the matter was never formally adjudicated. While Francis' application was pending, the National Criminal Intelligence Service of Interpol in London, England informed the Maryland State Police that Francis was wanted in the United Kingdom for various drug-related offenses and had previously been convicted of several other crimes. Formal deportation proceedings began soon thereafter. As part of the deportation process, INS served Francis with several documents, which together make up his Alien File ("A-File"). First, he received a Form I-205 "Notice of Intent to Deport for Violating the Terms of Your Admission Under Section 217 of the Immigration and Nationality Act" on August 22, 1996. See Gov't Ex. F (ECF No. 28). In addition to explaining that Francis had exceeded his authorized VWP stay, the Notice indicated that because Francis signed a Form I-791 as part of his application for entry under the VWP, he waived his right to contest deportability.[2] Id. Francis was also served with a Form I-294 "Warning to Alien Ordered Removed or Deported" dated August 22, 1997, which advised that a return to this country following deportation would be a felony under § 1326. See Gov.'t Ex. G (ECF No. 28). Francis' A-File also contains a "Warrant of Deportation" authorizing an ICE agent to take Francis into salary and deport him, which was executed on August 28, 1997, when Francis left the country from Washington Dulles Airport via United Airlines Flight 918. See Gov't Ex. H (ECF No. 28). On October 31, 1997, INS informed Francis, through his attorney in the adjustment-of-status proceedings, that his application for LPR had been abandoned because of his deportation.

The government alleges that sometime thereafter Francis reentered the United States without first having obtained permission from the Attorney General to ensure his lawful re-admittance. According to the Information, he was discovered in the Western District of Pennsylvania using the alias "Anthony Judd" on or about February 21, 2013.

II. Discussion

Francis argues that the information should be dismissed for two independent reasons, raised in separate motions. The Court will address each motion seriatim.

A. Defendant's First Motion to Dismiss Information

Francis argues that the Information is fatally flawed because it does not list an essential element of the crime charged, specifically, "that an order of deportation or removal was issued in connection with the occasion, on or about August 28, 1997" when he was removed from this country.[3] Def.'s First Mot. to Dismiss 6 (ECF No. 25). The government contends that the Information meets the requirements of Fed. R. Crim. P. 7(c)(1).

Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides, in pertinent part, that an "information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government." A motion alleging a defect in the information must be raised prior to trial. Fed. R. Crim. P. 12(b)(3)(B). In deciding a motion to dismiss under Rule 12(b)(3)(B), the district court's role is not to consider the sufficiency of the evidence, but merely to decide whether the allegations in the indictment are sufficient to charge the named offense. U.S. v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000) (citing U.S. v. Sampson, 371 U.S. 75, 78-79 (1962)). An information is sufficient in that respect if (1) it contains the elements of the offense, (2) sufficiently informs the defendant of the allegations he must be prepared to meet, and (3) allows the defendant to plead an acquittal or conviction to prevent future prosecutions for the same offense. U.S. v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (citations and internal quotation marks omitted). Notably, "an indictment parroting the language of a federal criminal statute is often sufficient[.]" U.S. v. Resendiz-Ponce, 549 U.S. 102, 109 (2007).

Francis has been charged with the crime of illegal reentry, in violation of 8 U.S.C. § 1326(a). That section of the ...

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