United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge
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).
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.
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).
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;
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).
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).
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
testified that during his investigation in this case, he came
across the April 2001 Petition (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).
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. 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).
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. (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.” (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).
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, ...