United States v. Becerra-Robles

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge

         This matter is before the Court on the Motion to Dismiss (Filing No. 22) filed by Defendant, Francisco Becerra-Robles. Defendant filed a brief (Filing No. 23) in support of the motion, the government filed a brief (Filing No. 28) in opposition, and Defendant filed a supplemental brief (Filing No. 31) in response. Defendant also filed an exhibit list with attachments (Filing No. 26) and a supplemental exhibit list with an attachment (Filing No. 30).

         The Court held an evidentiary hearing on the motion on January 3, 2018. Defendant was present with his attorney, Joshua W. Weir. The government was represented by Assistant United States Attorney, Frederick D. Franklin. Department of Homeland Security Special Agent Mark Lee (“SA Lee”) testified on behalf of the government. The Court received into evidence, without objection, Exhibits 101 through 114 offered by Defendant, and Exhibit 115 jointly offered by the parties. A transcript (TR.) of the hearing was prepared and filed on January 12, 2018. (Filing No. 37). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be granted.

         BACKGROUND

         The facts in this case are largely undisputed. Defendant was convicted of an aggravated felony in 1992 or 1993 and was thereafter deported to Mexico. (TR. 8-9; Filing No. 23). Defendant reentered the United States sometime in 2000 and began living in Omaha, Nebraska. (TR. 12; Filing No. 23). Defendant's employment history is documented by the filing of W-2 and/or 1099 statements for the years 2001 through 2010 (Ex. 104-113), a 2011 Federal 1040 Schedule C (Ex. 114), and statements showing Social Security and Medicare taxes for the years 1985 through 1992, and 2000 through 2016. (Ex. 102-103). Defendant was also issued a social security number and social security card (Ex. 101). Importantly, a form I-130, also known as a “Petition for Alien Relative” (“Petition”) was filed with the U.S. Department of Justice, Immigration and Naturalization Service (“INS”), on Defendant's behalf by his father. The Petition was received by the Nebraska service center in Lincoln on April 30, 2001. (Ex. 115).^[1]

         SA Lee began his employment with the Department of Homeland Security (“DHS”) in November 2003, and has been with Homeland Security Investigations (“HSI”) in Omaha, Nebraska, since July 2007. (TR. 7, 27). SA Lee primarily investigates persons who have previously been removed from the United States and have illegally reentered the country. (TR. 7-8). SA Lee explained that currently, at least two divisions within the DHS deal with immigration: the United States Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”). However, prior to the creation of the DHS in 2003, the INS was the single agency that handled immigration matters. The INS was an agency within the Department of Justice (“DOJ”). (TR. 26-27). SA Lee testified that although the INS was one agency, there were separate departments within the INS, including an administrative division that reviewed immigration applications, and an enforcement division dealing with detention and removal, among other divisions. (TR. 24-25; 44-45).

         SA Lee explained that ICE, and subsequently HSI, operates a tip line out of the Burlington, Vermont Law Enforcement Support Center, which tips are then disseminated to the applicable field office based on geographic location. (TR. 9). SA Lee testified that he first became aware of Defendant on August 4, 2017, when two anonymous tips received by the tip line in June 2017 were forwarded to the Omaha field office. (TR. 10-11, 14). The tips indicated that Defendant might be in Omaha, Nebraska. (TR. 10). Before receiving these tips, SA Lee had no prior knowledge of Defendant. (TR. 15).

         SA Lee proceeded to investigate the tips and confirmed Defendant previously had been arrested and convicted of a felony and deported. (TR. 11). SA Lee also corroborated information shared in the tips regarding Defendant's ties to a business in Omaha and other personal information. (TR. 11-12). SA Lee testified Defendant had provided several addresses and appeared to own a house, a business, and several cars registered in his name. SA Lee testified that Defendant also appeared to be living under the name and date of birth that matched the information DHS had for Defendant in its files. (TR. 12). As part of his investigation, SA Lee searched for, but did not find, any application submitted by Defendant to legally reenter the United States. (TR. 12-13). SA Lee did confirm that in the late 1990s, Defendant appeared to attempt to reenter the United States under different names and dates of births on the southern border. (TR. 13). SA Lee conducted surveillance of Defendant's businesses and residential addresses to confirm Defendant's identity, and ultimately arrested Defendant at his business address (where he had apparently been living) in Omaha in October 2017. (TR. 13).

         SA Lee prepared the criminal complaint filed against Defendant in this district on November 3, 2017. (Filing No. 1). An Indictment was returned on November 15, 2017, charging Defendant under 8 U.S.C. § 1326(a) for being a previously deported alien “found in” the United States without express consent of the Attorney General. (Filing No. 13). Defendant has now moved to dismiss the Indictment, arguing that the instant prosecution is time-barred by the five-year statute of limitations. (Filing No. 22). Specifically, Defendant argues that he was “found in” the United States by immigration authorities as early as April 30, 2001, when the INS received the Petition for Alien Relative filed by Defendant's father on behalf of Defendant. (Filing No. 31).

         SA Lee testified that during his investigation in this case, he came across the April 2001 Petition^[2] (Ex. 115) filed by Defendant's father. (TR. 16-17). SA Lee found the Petition in Defendant's “immigration A file, ” which SA Lee described is a “permanent record” of all things related to an individual's immigration status, including immigration applications filed by the individual or other people filed on their behalf. (TR. 17). SA Lee testified that when a petition is filed on behalf of an alien relative, immigration officials sometimes have the alien relative come to the office for an interview to verify information or answer questions, although interviews are not required in every case. (TR. 18). Based on SA Lee's review of the April 2001 Petition, he believes the examiner determined that the Petition required further information and therefore called Defendant for an interview. However, SA Lee does not recall seeing an interview notice in Defendant's alien registration file. (TR. 35). According to SA Lee's review of the Petition, Defendant did not appear for an interview on August 12, 2003, so the Petition was denied on that date. (TR. 21, 35; Ex. 115).

         SA Lee testified that the Petition contained some misleading information and omitted some information that would have allowed the immigration examiner to “easily determine if [Defendant] had been previously deported;” for example, the Petition included Defendant's social security number but omitted his alien registration number.^[3] The alien registration number would have permitted the examiner to “easily pull up [Defendant's] information” to determine that he had previously been deported. The Petition also includes information that Defendant had entered “without inspection, ” but listed 1985 as the date he entered, although he had been deported in the 1990s. (TR. 19-21). Finally, the Petition indicates Defendant has never been under immigration proceedings. (Ex. 115).

         Nevertheless, SA Lee testified that review of the Petition might cause a reader, including the examining official, to believe that Defendant was indeed present in the United States. In fact, it appears that someone in an official capacity for the INS examining office handwrote on the Petition, “Appears beneficiary is in U.S.” (TR. 19, 33; Ex. 115). Moreover, although Defendant's father may not have supplied Defendant's alien registration number, SA Lee testified that it appears the immigration official handwrote Defendant's alien registration number on the Petition on the same date it was denied, August 12, 2003.^[4] (TR. 31-33; Ex. 115). The alien registration number handwritten by the immigration official on the Petition is the same alien registration number that was used in the removal proceedings against Defendant. (TR. 34). SA Lee testified that, had the examining immigration official run the alien registration number through their database, she would have found the prior removal order. (TR. 35). The Petition also contained Defendant's true name, listed that he was at an Omaha address, listed Defendant's true date of birth, listed Defendant's social security number, and noted that Defendant was married in Omaha on May 13, 2000, and that Defendant had a son born in Nebraska on January 21, 2001. Additionally, the preparer of the Petition indicated that the alien relative was in the United States and would apply for adjustment of status at the INS office in “Omaha, NE.”^[5] (TR. 36; Ex. 115). SA Lee testified that the examining immigration official “could have done possibly more investigation and . . . obtained [Defendant's] file and seen that he was previously deported.” (TR. 32). Regardless of the above information, in SA Lee's opinion, the information contained in the Petition was not sufficient to notify an agent within the INS, acting with due diligence, of the previously deported alien's physical presence in the United States. (TR. 42-43).

         ANALYSIS

         On November 15, 2017, Defendant was charged in the Indictment under 8 U.S.C. § 1326(a) for being a previously deported alien “found in” the United States without consent. (Filing No. 13). The statute of limitations for a non-capital federal offense is five years after commission. 18 U.S.C. § 3282. “The five-year statute of limitations for prosecutions under [8 U.S.C.] § 1326 begins running as soon as the offense is complete.” United States v. Gomez, 38 F.3d 1031, 1034 (8th Cir. 1994). “The offenses of entry and attempted entry are complete when the deported alien enters or attempts to enter through a recognized INS port of entry.” Id. However, unlike the offenses of entry or attempted entry by a deported alien, a “‘found in' violation is a continuing violation that is not complete until the alien is ‘discovered' by immigration authorities.” Id. at 1034-35. In this case, Defendant argues that he was “discovered” by immigration authorities more than five years before the Indictment was filed, and thus the instant prosecution is time-barred. The government argues that DHS agents, ...