Free Motion to Strike - District Court of Delaware - Delaware

Case 1:05-cr-00108-GMS

Document 33

Filed 12/29/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v.

ANDRES VALLEJO-MARTINEZ, Defendant.

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Criminal Action No. 05-108-GMS

MOTION TO STRIKE SURPLUSAGE FROM INDICTMENT Defendant, Andres Vallejo-Martinez, by and through his undersigned counsel, Eleni Kousoulis, files the instant Motion to Strike Surplusage from the Indictment in the present matter. In support of this motion, the defense submits as follows: 1. Mr. Vallejo-Martinez was indicted in this case by a federal grand jury on December

15, 2005 with a single count of Illegal Reentry after Deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). 2. 18 U.S.C. § 1326(b)(1) deals with penalties for reentry of certain removed aliens, and

does not deal with an element of the offense for which Mr. Vallejo-Martinez is charged. 3. Federal Rule of Criminal Procedure 7(d) permits the Court to grant a defendant's

motion to strike surplusage from an indictment. 4. Mr. Vallejo-Martinez submits that any reference to 8 U.S.C. § 1326 (b)(1) is

Case 1:05-cr-00108-GMS

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Filed 12/29/2006

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surplusage, and therefore moves the Court to strike from the Indictment the reference to § 1326 (b)(1), as surplusage. 5. AUSA Edmond Falgowski, the attorney handling this case for the government, does

not oppose this motion. WHEREFORE, Mr. Vallejo-Martinez respectfully requests that the Court enter an Order striking the identified surplusage from the indictment in this case. Respectfully Submitted,

/s/ Eleni Kousoulis, Esquire Assistant Federal Public Defender 704 King Street, Suite 110 Wilmington, Delaware 19801 Attorney for Defendant Vallejo-Martinez

DATED:

December 29, 2006

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Case 1:05-cr-00108-GMS

Document 33

Filed 12/29/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. ANDRES VALLEJO-MARTINEZ, Defendant.

: : : : : : : : :

Criminal Action No. 05-108-GMS

CERTIFICATE OF SERVICE The undersigned attorney for defendant Andres Vallejo-Martinez hereby certifies that a copy of Defendant's Motion to Strike Surplusage from the Indictment is available for public viewing and downloading and was electronically delivered on December 29, 2006, to:

Edmond Falgowski, Esquire Assistant U.S. Attorney 1007 Orange Street Suite 700, P.O. Box 2046 Wilmington, DE 19899-2046

/s/ Eleni Kousoulis, Esquire Assistant Federal Public Defender 704 King Street, Suite 110 Wilmington, Delaware 19801 Attorney for Defendant Vallejo-Martinez