Opinion
06 CR 791 (SAS).
August 6, 2007
For the United States: Anna E. Arreola, Assistant United States Attorney, New York, New York.
For Defendant: Bennet M. Epstein, Esq., New York, New York.
MEMORANDUM OPINION AND ORDER
Defendant Pedro Francisco moves to dismiss the indictment charging him with illegal reentry following deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Defendant, who is represented by counsel, filed his motion pro se, which his counsel asserts is permissible. For the reasons set forth below, defendant's motion is DENIED in its entirety.
See 4/10/07 Letter from Bennet Epstein, Defendant's Counsel, to the Court ("April 10 Letter"), attaching exhibits and Francisco's pro se motion to dismiss.
I. BACKGROUND
Francisco is a citizen of the Dominican Republic. In December, 1988, he was convicted of the attempted criminal sale of a controlled substance. On June 27, 1989, he was deported as a result of that conviction. By his own admission, defendant returned "clandestinely [to the United States] only a few months after his deportation, in the same year 1989." After he returned he was arrested twice by the New York City Police Department ("NYPD"). His first arrest occurred on September 20, 1995. At the arrest, he gave a false name and date of birth. His second arrest occurred on January 13, 1996, where he again provided a false date of birth. At both arrests he provided a false address, although each fictitious address was very close to both his true residence and the address of his 2006 arrest. Both times, Francisco was released on his own recognizance and failed to appear for court proceedings. Bench warrants for his arrest were issued in 1995 and 1996 and remain outstanding to this day.
1/31/07 Pro Se Memorandum ("Def. Mem.") at 4.
See April 10 Letter (citing United States v. Are, 431 F. Supp. 2d 842 (N. D. Ill. 2006)). In this case, which is obviously not binding authority with respect to this Court, the judge found that the federal authorities had constructive knowledge of all of the elements of the offense of being found in the United States — namely defendant's physical presence, his identity as an illegal alien, and his having been the subject of a prior deportation. However, this case is distinguishable because the INS knew the Defendant was in the country when it received an anonymous tip, put his case "in progress," but then failed to arrest him until after the statute of limitations had run. See id.
On September 14, 2006, Francisco was arrested for the instant offense. During the more than ten years between his last NYPD arrest and the instant charge by the federal authorities, Francisco lived under a false name — Baldemino Terrero — and maintained steady employment. Defendant admits that during these years he lived "behind the veil of a false identity" and eventually "confess[ed] to his [work] supervisor . . . that he is an undocumented alien and is outside the law."
Def. Mem at 6.
Defendant now moves to dismiss the indictment against him as time-barred. Defendant argues that the federal immigration authorities should have discovered that he was in the United States based on his arrest by the NYPD in 1996. Thus, he argues, the five-year statute of limitations ran in 2001, five years before he was charged with the instant offense.
See 18 U.S.C. § 3282 ("Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five-years next after such offense shall have been committed.").
II. DISCUSSION
A. The Defendant's Flight Tolls the Statute of Limitations
"No statute of limitations shall extend to any person fleeing from justice." To take advantage of this statute, the Government must prove, by a preponderance of the evidence, that the defendant was "fleeing from justice." Flight is proven by demonstrating that the defendant sought to avoid arrest or prosecution. Further, it is the court, rather than the jury, that decides whether the government has proven flight. A defendant's flight from unrelated state or federal charges also tolls the statute of limitations on a pending federal charge. The Second Circuit has interpreted the term "fleeing" very broadly.
18 U.S.C. § 3290.
See United States v. Florez, 447 F.3d 145, 152 (2d Cir. 2006).
See id. at 150.
See United States v. Catino, 735 F.2d 718 721 (2d Cir. 1984) ("a person fleeing from justice in one jurisdiction loses the benefit of the statute of limitations for all charges in all federal jurisdictions."). See also United States v. Morgan, 922 F.2d 1495, 1498-99 (10th Cir. 1991) (holding that flight from state crime tolls the statute of limitations for unrelated federal crime); United States v. Gonsalves, 675 F.2d 1050, 1052-53 (9th Cir. 1982) (holding that where a defendant is unaware of a federal indictment out of one district, and flees to avoid prosecution for an unrelated federal indictment out of a different federal district, the statute of limitations is tolled on the charges of which he is unaware).
[T]he government need not prove a defendant's actual departure from the jurisdiction in which the crime was committed to establish intentional flight from justice under § 3290. . . . [I]t is almost as easy to avoid arrest or prosecution by concealing oneself within the district as by fleeing the district. . . . [A] finding of intentional flight under § 3290 is not necessarily foreclosed by a hindsight determination that the government might have located the defendant sooner if it had taken certain actions.
Florez, 447 F.3d at 152.
There is no question here, based on the facts conceded by Francisco, that he has been "fleeing" prosecution from both the state and federal authorities. After being twice released by the state authorities on his own recognizance, he failed to appear in court, causing bench warrants to be issued for his arrest. Those warrants remain outstanding. Further, he has never appeared on the pending state charges. In addition, Francisco admits that after reentering the United States in 1989, he "lived under the shadow a false identity" and that "he is undocumented alien and is outside the law." Given these facts, there is no dispute that defendant has been fleeing prosecution since he returned to the United States. As a result, the statute of limitations must be tolled from 1989 to 2006, the date of his federal arrest. Thus, the indictment was brought within the limitations period and Defendant's motion to dismiss the indictment as time-barred is denied.
Def. Mem. at 4.
Id. at 6.
Even if the Government had not established flight and was not entitled to the benefit of the toll, Francisco's motion must be denied at this time.
B. The NYPD's Knowledge Cannot be Imputed to the Federal Authorities
The statute of limitations in criminal cases begins to run when the crime is "complete." An offense committed under § 1326 is complete upon the occurrence of one of three events: the alien (i) enters; (ii) attempts to enter; or (iii) is "found in" the United States. The offense of being "found" in the United States "is not complete until the authorities both discover the illegal alien in the United States . . . and know, or with the exercise of diligence typical of law enforcement authorities could have discovered, the illegality of his presence." The Court of Appeals for the Second Circuit has held that the "found in" provision targets instances where a deported alien enters this country "`surreptitious[ly]'" or "`by means of specious documentation that conceals the illegality of his presence.'" The Second Circuit has also held that knowledge by state officials about a defendant's presence in the United States cannot be imputed to the federal government. Thus, Francisco's arrests by state authorities in 1995 and 1996, when he admittedly provided false information, do not impute knowledge to federal immigration authorities.
Toussie v. United States, 397 U.S. 112, 115 (1970).
United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995). Accord United States v. Mercedes, 287 F.3d 47, 54 (2d Cir. 2002).
United States v. Barnes, 244 F.3d 331, 334 (2d Cir. 2001) (quoting United States v. Acevedo, 229 F.3d 350, 354 (2d Cir. 2000)).
See Mercedes, 287 F.3d at 55 (holding that INS not charged with knowledge of defendant's arrest by the state particularly given the false information defendant provided at his arrest); Acevedo, 229 F.3d at 355 (holding that defendant not "found" for purposes of limitation period until INS learned of his presence here despite arrest two years earlier by New York state authorities); United States v. Calderon, 85 F. Supp. 2d 319, 321 (S.D.N.Y. 2000) (holding that the mere fact that the defendant was fingerprinted at the time of his state arrest did not suggest that the federal government had "constructive knowledge of Defendant's prior deportation.").
See United States v. Bencomo-Castillo, 176 F.3d 1300, 1304 (10th Cir. 1999) (rejecting claim that the INS had constructive knowledge of alien's presence in local prison, finding that the alien's use of an alias upon arrest makes status difficult to detect and that INS is under no legal duty to "conduct a more exhaustive investigation of his criminal history.").
Nonetheless, the question as to when the authorities could have, with the exercise of reasonable diligence, discovered his presence in the United States still remains. Yet, that is a question which must await the trial of the general issue, where the Government will bear the burden of proving every element of the offense beyond a reasonable doubt. Because the issue of when the defendant was "found" by the federal government must be decided at trial, Francisco's motion is both premature and warrants a deferral pursuant to Rules 12(b)(2) and 12(d) of the Federal Rules of Criminal Procedure, respectively.
1. The Motion Is Premature
Being "found" in the United States is an element of the present offense. Thus, the Government will be required to prove at trial when the defendant was "found" in the United States. Rule 12(b)(2) forbids a court from deciding a pretrial motion that requires a "trial of the general issue." When deciding a pretrial motion a court must accept all factual allegations in the indictment as true. Further, a Rule 12(b) motion to dismiss is appropriate only "if the trial of the general issue of guilt `would be of no assistance in determining the validity of the defense.'" Thus, a court should not inquire into the sufficiency of the evidence on a pretrial motion to dismiss an indictment unless the government has made a full proffer of the evidence it intends to present at trial.
The third element of 8 U.S.C. § 1326(a) states that "the defendant thereafter unlawfully, willfully, and knowingly did enter and was found in the United States."
Fed.R.Crim.Proc. 12(b)(2). Rule 12(b)(2) provides that "[a] party may raise by pretrial motion may raise by pretrial motion any defense, objection, or request which is capable of determination without the trial of the general issue."
See Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16 (1952).
United States v. Bodmer, 342 F. Supp. 2d 176, 180 (S.D.N.Y. 2004) (quoting United States v. Covington, 395 U.S. 57, 60-61 (1969)).
See United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) ("to the extent that the district court looked beyond the face of the indictment and drew inferences as to the proof that would be introduced by the government at trial . . . such an inquiry into the sufficiency of the evidence was premature.").
Francisco argues that this motion can be decided independent of the general issue to be decided at trial. Specifically, he argues that the legal issue of whether the federal authorities had constructive knowledge that Francisco was found in the United States well before September, 2001, based on his arrest by state authorities in 1995 and 1996, can be resolved now. While it is true that this legal issue can be decided without a trial of the general issue — namely whether defendant is guilty of the charged crime — Francisco is wrong that constructive knowledge of his presence in the United States should be imputed to federal authorities based on the state arrests. Thus, the issue of knowledge — namely when the federal authorities knew, or with the exercise of reasonable diligence should have known, of his presence in the United States — is an element of the offense and must await trial of the general issue.
See 6/01/07 letter from Epstein to the Court (citing United States v. Craft, 105 F.3d 1123, 1127 (6th Cir. 1997); United States v. Ramirez, 324 F.3d 1225 (11th Cir. 2003) (both holding that a statute of limitations defense can be decided before trial if it raises issues that are separate and apart from the merits of the charged offense)).
See, e.g., United States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995).
See supra Part II. B.
2. Rule 12(d) Requires Deferring a Decision on This Motion
Rule 12(d) provides that a district court "must decide every pretrial motion before trial unless it finds good cause to defer a ruling." Good cause exists when a defendant's claims "`are substantially founded upon and intertwined with the evidence to be presented at trial.'" Because Francisco's motion to dismiss the indictment would require the Court to resolve the question of when he was "found" in the United Stales (an element of the offense), the statute of limitations defense is "intertwined with the evidence to be presented at trial."
United States v. Bodmer, 342 F. Supp. 2d 176, 180 (S.D.N.Y. 2004) (quoting United States v. Williams, 644 F.2d 950, 953 (2d Cir. 1981)).
III. CONCLUSION
For the reasons stated above, defendant's motion to dismiss the indictment based on the statute of limitations is DENIED.
SO ORDERED: