U.S. v. Are

Decision Date09 August 2007
Docket NumberNo. 06-2802.,06-2802.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Adewunmi ARE, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Christopher P. Hotaling (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

Gabriel B. Plotkin (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellee.

Before KANNE, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

The sole issue in this appeal is the timeliness of an indictment for the crime of being "found in" the United States after deportation. See 8 U.S.C. § 1326(a)(2). Adewunmi Are, a Nigerian national, was convicted in 1995 of drug smuggling and in 1996 was deported. He attempted an illegal reentry in May 1998 but was caught at the airport and immediately sent back to Nigeria. He tried again in September 1998 and this time succeeded. Because he slipped into the country undetected, however, immigration authorities did not discover his presence until sometime after his 2003 arrest by Chicago police on an unrelated offense. Although he gave a false name at the time of his arrest and immediately posted bail, fingerprint processing and further investigation eventually confirmed his true identity and location, and in June 2005 he was arrested on the immigration violation.

The crime of illegal reentry under 8 U.S.C. § 1326(a)(2) is committed when a previously deported, removed, or excluded alien "enters, attempts to enter, or is at any time found in, the United States" without the Attorney General's permission. On September 1, 2005, Are was indicted for committing the "found in" version of this offense. Applying the five-year limitations period imposed by 18 U.S.C. § 3282(a), the district court dismissed the indictment as untimely.

The court held the government should have known of Are's illegal presence in 1998 or 1999 because immigration authorities had opened an investigative file in October 1998 based on Are's unsuccessful reentry attempt earlier that year; the authorities also had a tip from a confidential informant that Are was living in Chicago. This established constructive knowledge of Are's illegal presence, the court held, and that was enough to start the running of the statute of limitations. The judge believed the government should have investigated more diligently. The government appealed, arguing that only actual—not constructive — discovery by immigration authorities starts the running of the limitations period.

We reverse. The "found in" variation of the § 1326(a)(2) crime is a continuing offense; the statute of limitations generally does not begin to run for continuing offenses until the illegal conduct is terminated. The statute makes it a crime to be "at any time found in" the United States following deportation, permitting prosecution of deportees who evade detection at the border and remain present here undetected, even for long periods of time. A "constructive knowledge" interpretation—one that starts the statute of limitations clock when the government "should have found" the deportee — is inconsistent with the straightforward text and obvious purpose of the statute. Immigration authorities did not actually discover Are's presence, identity, and status as a prior deportee until sometime in late 2003 or 2004, and his illegal presence continued until his arrest in June 2005. Whether measured from the date of his actual "discovery" by immigration authorities or the date of his arrest, the September 1, 2005 indictment was timely.

I. Background

The former Immigration and Naturalization Service ("INS") deported Are to his native Nigeria in 1996 following his conviction for conspiracy to import heroin in the United States District Court for the Eastern District of New York. Are tried to reenter the United States at New York's Kennedy Airport on May 9, 1998, but was detained by immigration authorities and removed to Nigeria the next day. On September 4, 1998, however, he slipped into the United States by stealth. He moved in with his wife in Chicago under an assumed name and remained undetected by immigration authorities until sometime in late 2003 or 2004, when fingerprints taken during his September 23, 2003 arrest by Chicago police betrayed his presence to the Department of Homeland Security ("DHS"), the successor agency to the INS. On December 10, 2004, a Deputy United States Marshal completed a report that traced Are to an address in the Chicago suburbs; he was arrested on June 20, 2005. On September 1, 2005, a grand jury indicted him for the offense of being "found in" the United States after his 1996 deportation in violation of 8 U.S.C. § 1326(a)(2).

The district court dismissed the indictment as untimely under the five-year limitations period imposed by 18 U.S.C. § 3282. Citing this court's opinion in United States v. Herrera-Ordones, 190 F.3d 504 (7th Cir.1999), the court applied a "constructive knowledge standard" to determine when the statute of limitations began to run. Although the indictment came less than two years after DHS learned from the fingerprint evidence that Are was in Chicago, the court concluded that DHS had constructive knowledge of Are's illegal presence in this country prior to September 1, 2000 (five years before the date of the indictment). The judge believed immigration authorities should have known of Are's presence well before that date based in part on an investigative file the INS opened on October 15, 1998.

It is not entirely clear what prompted the opening of this investigation; the file contains only a cryptic "Investigation Preliminary Worksheet" listing Are's name, a location of "CHI," and a checked box indicating the case was being "placed in progress." There is a separate document in the record indicating that on September 25, 1997, the INS received a tip from a confidential informant that Are was living in Chicago with his wife, Vivian Adelagun. In the district court, the government suggested the October 1998 investigative file was opened in response to the 1997 tip; in its brief in this court, however, the government maintains the file was opened in response to Are's failed reentry attempt in May 1998.

The district court also relied on two documents filed in 1998 in Are's drug case in the Eastern District of New York. On December 21, 1998, the probation office for the Eastern District of New York filed a Violation of Supervised Release form in Are's case. On December 29, 1998, an arrest warrant for the supervised release violation was issued. The violation report and warrant list a last known address for Are on Sheridan Road in Chicago (the same address listed in his presentence report in the underlying drug case), but there is no detail about the nature of the violation; the government suggests the report and warrant were generated in response to Are's May 1998 failed reentry attempt.

Although the district court specifically declined to identify "a concrete discovery date," the court concluded that the foregoing evidence established that at some point prior to September 1, 2000, "the government had constructive knowledge of defendant's physical presence, identity as an illegal alien, and status as having a prior deportation." The court held that "[b]ecause a reasonable investigation would have discovered defendant prior to September 1, 2000, the indictment was filed five years after the section 1326 offense was committed, and the prosecution is therefore time-barred."

II. Discussion

The statute of limitations for noncapital offenses provides that "no person shall be prosecuted, tried, or punished for any offense . . . unless the indictment is found . . . within five years next after such offense shall have been committed." 18 U.S.C. 3282(a) (2000). Ordinarily, an offense is committed when it is completed, that is, when each element has occurred. Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); United States v. Yashar, 166 F.3d 873, 875 (7th Cir.1999). The issue before us in this appeal is whether Are's charged offense — being "found in" the United States in violation of 8 U.S.C. § 1326(a)(2)—was committed within five years of September 1, 2005, the date of the indictment.

Both sides agree DHS did not actually discover Are in Chicago until late 2003 or 2004, well within the limitations period. But Are believes the limitations period was triggered in late 1998 because DHS should have discovered his illegal presence at that time. The government counters that it had insufficient information to know Are was in Chicago in late 1998. Alternatively, the government contends that for the purposes of starting the limitations period, the offense of being "found in" the United States is completed only upon actual discovery of the deportee's physical presence by DHS. Constructive knowledge—the date on which the government "should have known" of the deportee's presence here—should not start the five-year clock.1 We review de novo whether the limitations period has run, giving deference to necessary factual determinations by the district court. United States v. Barnes, 230 F.3d 311, 314 (7th Cir.2000).

This circuit has yet to squarely address the issue of when the statute of limitations for a § 1326(a)(2) "found in" offense begins to run. See United States v. Rodriguez-Rodriguez, 453 F.3d 458, 461 (7th Cir. 2006) (declining to consider whether a "one clock" rule should govern the running of the limitations period in "found in" cases). We have, however, characterized the "found in" offense under § 1326(a)(2) as a continuing offense, and this necessarily defeats Are's argument (adopted by the district court) that the limitations period begins to run when the government "should have found" him. In United States v. Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001), we held that "in the case of surreptitious reentry . . . the `found in'...

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