U.S. v. Lepore, CRIM.A.03-10158-WGY.

• Decision Date: 12 February 2004
• Docket Number: No. CRIM.A.03-10158-WGY.,CRIM.A.03-10158-WGY.
• Citation: 304 F.Supp.2d 183
• Parties: UNITED STATES of America v. Erasmo Angelo LEPORE, Defendant.
• Court: U.S. District Court — District of Massachusetts

304 F.Supp.2d 183

UNITED STATES of America v. Erasmo Angelo LEPORE, Defendant.

No. CRIM.A.03-10158-WGY.

United States District Court, D. Massachusetts.

February 12, 2004.

Nadine Pellegrini, United States Attorney's Office, Boston, MA, for Plaintiff.

Elizabeth A. Lunt, Zalkind, Rodriquez, Lunt & Duncan LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

The defendant, Erasmo Angelo Lepore ("Lepore"), is charged with illegal re-entry as a deported alien, 8 U.S.C. § 1326, and misuse of a social security number, 42 U.S.C. § 408. In this Motion to Dismiss Count One of the Indictment, Lepore collaterally attacks his underlying 1999 deportation order. To succeed, Lepore must show (1) that he exhausted all administrative remedies, (2) that he was improperly deprived of judicial review, and (3) that his deportation order was fundamentally unfair. 8 U.S.C. § 1326(d).

A. Facts

For the most part, the relevant facts are not in dispute.

On January 18, 1990, Lepore was convicted of indecent assault and battery on a person fourteen or older, pursuant to Mass. Gen. Laws ch. 265, § 13H, and sentenced to one year in prison. Gov't's Opp'n to Def.'s Mot. to Dismiss [Doc. No. 17], Ex. D. Lepore has provided evidence (in the form of an affidavit from his attorney in that case) that the conviction resulted from a plea agreement, see Aff. Of James J. Cipoletta, Esq., and although the government contests this, see Gov't's Supp. Opp'n to Def.'s Mot. to Dismiss [Doc. No. 23], at 8-9, the Court holds that the 1990 conviction did in fact result from a plea agreement.

Before the 1990 conviction, Lepore was convicted in 1984 of indecent assault and battery on a child under the age of fourteen, and in 1986 and 1987 was convicted on two separate occasions for open and gross lewdness, and on one occasion for indecent exposure. See Gov't's Opp'n to Def.'s Mot. to Dismiss, Ex. D; Gov't's 2d Supp. Opp'n to Def.'s Mot. to Dismiss [Doc. No. 29], at 2; see also Def.'s Resp. to Gov't's 2d Supp. Opp'n [Doc. No. 30], at 1 (acknowledging the 1987 convictions).¹ On February 19, 1999, he pled guilty to indecent assault and battery on a person fourteen or over and to two counts of open and gross lewdness and lascivious behavior. Id., Exs. B & D.

On September 14, 1999, Lepore appeared before Immigration Judge Shapiro ("hearing officer"). Gov't's Opp'n to Def.'s Mot. to Dismiss, Ex. C. The hearing officer explained to Lepore that the government sought to deport him because his 1990 conviction for indecent assault and battery, a crime of violence for which he was sentenced to one year in prison, rendered him an aggravated felon.² Id. at 3, ¶¶ 8-19. The hearing officer advised Lepore of his right to counsel, his right to call witnesses, and his right to cross-examine hostile witnesses. Id. at 3-5. The hearing officer also advised Lepore that he could appeal any decision to the Board of Immigration Appeals ("Board") in Washington. Id. at 5, ¶¶ 2-6. Lepore stated that he wished to speak for himself, and called no witnesses. Id. at 4, ¶ 9. In response to various questions from the hearing officer, Lepore mentioned his family and the fact that he suffered from depression. Id. at 6, ¶¶ 11-14. He implied that his various crimes could be attributed to his depression, and added that he was currently seeing a doctor and "doing great." Id. at 7, ¶¶ 11-13. The hearing officer interrupted him at this point, stating that "I don't have any discretion to let you stay here. The new laws passed in 1996 say that someone who has been convicted of a crime like this, the only thing I can do is order you to be deported to Italy, even if you're a changed person and create great hardship on your family.... So I don't have any alternative, but to order you to be deported." Id. at 7, ¶¶ 14-22. Finally, the hearing officer advised Lepore that he could appeal the decision to the Board, but Lepore waived his right to an appeal. Id. at 7-8.

Lepore returned to the United States after being removed to Italy, and was arrested in front of his Chelsea, Massachusetts apartment on or about April 9, 2003. Def.'s Mem. in Supp. of Mot. to Suppress [Doc. No. 12], at 1. Now charged with illegal reentry as a deported alien, 8 U.S.C. § 1326, Lepore collaterally attacks his 1999 deportation order.

II. DISCUSSION

In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that a criminal defendant charged with illegal reentry may collaterally attack the prior deportation order which has become an element of the criminal offense. Id. at 837-39, 107 S.Ct. 2148. Specifically, the Supreme Court held that "where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Id. at 838, 107 S.Ct. 2148 (citing Estep v. United States, 327 U.S. 114, 121-22, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)).

After Mendoza-Lopez was decided, Congress amended 8 U.S.C. § 1326 to provide that an alien charged with illegal reentry may only collaterally attack an underlying deportation order upon a showing 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.

8 U.S.C. § 1326(d). These three elements are conjunctive, so Lepore must satisfy each to attack successfully his 1999 deportation order. See United States v. Roque-Espinoza, 338 F.3d 724, 728 (7th Cir.2003); United States v. Wilson, 316 F.3d 506, 509 (4th Cir.2003), cert. denied, ___ U.S. ___, 123 S.Ct. 1959, 155 L.Ed.2d 871 (2003); United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.2002).

Lepore makes two major arguments in support of his collateral attack: First, he argues that he did not commit an "aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43)(F) and that, as a result, he was never actually deportable. Second, he argues that he was eligible for discretionary relief from deportation, but the hearing officer failed to advise him of his rights, such that his hearing violated his constitutional procedural due process rights.

A. Indecent Assault and Battery on a Person Fourteen or Older Is a "Crime of Violence" Under 18 U.S.C. § 16

Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), "any alien who is convicted of an aggravated felony at any time after admission is deportable." The term "aggravated felony" includes, among other things, "a crime of violence." 8 U.S.C. § 1101(a)(43)(F). A "crime of violence" is defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16.

In 1990, Lepore was convicted of indecent assault and battery on a person fourteen or older, Mass. Gen. Laws ch. 265, § 13H. This conviction served as the basis for Lepore's deportation. Lepore argues that indecent assault and battery on a person fourteen or older is not a "crime of violence" and that, as a result, he was not an "aggravated felon" subject to deportation.

Massachusetts General Laws Chapter 265, Section 13H does not set forth the elements of a violation for indecent assault and battery on a person fourteen or older, but the Massachusetts Appeals Court has described the crime as follows:

A touching is indecent when, judged by the normative standard of societal mores, it is violative of social and behavioral expectations, in a manner which [is] fundamentally offensive to contemporary moral values ... [and] which the common sense of society would regard as immodest, immoral, and improper. So defined, the term "indecent" affords a reasonable opportunity for a person of ordinary intelligence to know what is prohibited.

Commonwealth v. Lavigne, 42 Mass.App.Ct. 313, 314-15, 676 N.E.2d 1170 (1997) (alteration in original) (citations and internal quotation marks omitted); see also Sutherland v. Reno, 228 F.3d 171, 176 (2d Cir.2000) (quoting the Lavigne passage); Maghsoudi v. INS, 181 F.3d 8, 14-15 (1st Cir.1999) (same); Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184, 567 N.E.2d 939 (1991) (citing Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 43-44, 477 N.E.2d 1061 (1985)) (defining the crime similarly).

The first issue presented here is whether indecent assault and battery on a person fourteen or older is a "crime of violence" because it "involves a substantial risk that physical force ... may be used in the course of committing the offense." 18 U.S.C. § 16(b).³ Several courts have addressed this issue and have concluded that indecent assault and battery on a person fourteen or older does indeed involve a "substantial risk of force," and as a result, qualifies as a "crime of violence" under 18 U.S.C. § 16(b). See Sutherland v. Reno, 228 F.3d 171, 175-76 (2d Cir.2000); Sango-Dema v. INS, 122 F.Supp.2d 213, 219 (D.Mass.2000) (Saris, J.).

The First Circuit has held that lack of consent is an element of indecent assault on a person fourteen or older under Massachusetts General Laws Chapter 265, Section 13H. Maghsoudi, 181 F.3d at 15 (1st Cir.1999) (citing Commonwealth v. Burke, 390 Mass. 480, 484 n. 4, 457 N.E.2d 622 (1983), and Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 926-27, 465 N.E.2d 1220 (1984)).

In Sutherland, the Second Circuit agreed that lack of consent is a "requisite element of a § 13H violation." 228 F.3d at 176 (...