U.S. v. Rivera-Ventura

• Decision Date: 19 December 1995
• Docket Number: D,RIVERA-VENTUR,No. 219,219
• Parties: UNITED STATES of America, Appellee, v. Santos Hernanefendant-Appellant. ocket 95-1134.
• Court: U.S. Court of Appeals — Second Circuit

Page 277

72 F.3d 277

UNITED STATES of America, Appellee, v. Santos Hernan RIVERA-VENTURA, Defendant-Appellant.

No. 219, Docket 95-1134.

United States Court of Appeals, Second Circuit.

Argued Sept. 29, 1995.

Decided Dec. 19, 1995.

Kelly A. Moore, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, David C. James, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

Philip L. Weinstein, New York City (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, on the brief), for Defendant-Appellant.

Before KEARSE, WALKER, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Santos Hernan Rivera-Ventura appeals from a judgment entered in the United States District Court for the Eastern District of New York convicting him, following his conditional plea of guilty before Jack B. Weinstein, Judge, of being "found in" the United States after having been deported

and without first obtaining the permission of the United States Attorney General, in violation of 8 U.S.C. Sec. 1326(a) (1994). Indicted on this charge in 1994, Rivera-Ventura sought dismissal of the indictment on the ground that his postdeportation reentry into the United States occurred in 1987 and was contemporaneously known to the government, and that the applicable five-year statute of limitations thus barred the present prosecution. The district court rejected the statute-of-limitations defense on the alternative grounds that (a) violation of the "found in" provision of Sec. 1326(a) is a continuing offense, and (b) Rivera-Ventura's conduct had tolled the running of the statute. Rivera-Ventura pursues his statute-of-limitations argument on appeal. For the reasons below, we conclude that the running of the statute was tolled, and we therefore affirm the judgment of the district court.

I. BACKGROUND

In September 1986, Rivera-Ventura, a native of El Salvador, illegally entered the United States near San Ysidro, California. He was immediately arrested by officials of the Immigration and Naturalization Service ("INS"), and on September 30, 1986, he was ordered deported. The written notice of deportation informed Rivera-Ventura in both English and Spanish that, should he wish to return to the United States following his deportation, he would need to obtain permission to do so. The notice stated that any deported person who returns to the United States without such permission is guilty of a felony punishable by up to two years' incarceration and a fine of up to $1,000. Rivera-Ventura was deported from the United States in October 1986.

Approximately one year later, Rivera-Ventura again illegally entered the United States, this time near Brownsville, Texas, and was soon arrested by INS agents, who found him hiding in the back of a truck. The INS promptly commenced deportation proceedings against him. On Rivera-Ventura's motion, venue was transferred from Texas to New York in November 1987. Represented by counsel, Rivera-Ventura conceded in writing that he was deportable, and he requested an opportunity to apply for discretionary relief from deportation, including political asylum. Rivera-Ventura was released on bail pending his administrative hearing, having provided the INS with an address in Flushing, New York, where he represented that he would reside pending further proceedings. This address was later discovered to be false.

A letter informing Rivera-Ventura that his hearing would be held on February 18, 1988, was sent to him at the address he had falsely provided. When he failed to appear for the hearing, the immigration judge ordered that the matter be returned to the INS for appropriate action. No criminal charges were filed at that time, and it is unclear what steps, if any, the INS took to locate Rivera-Ventura. Although Rivera-Ventura was arrested by local law enforcement officials several times between 1987 and September 1994 on charges of driving while intoxicated, he escaped INS detection each time by giving the local officials a false name.

Rivera-Ventura was finally rearrested by INS agents in September 1994, after they were alerted to his incarceration in New York on charges of drunk driving. He was indicted in October 1994 for the offense of being "found in" the United States between October 1987 and September 1994, having previously been deported and not having obtained the permission of the Attorney General to reenter, in violation of 8 U.S.C. Sec. 1326(a). Rivera-Ventura moved to dismiss the indictment on the ground that, since his unlawful postdeportation reentry had occurred in 1987 and the government had found him in the United States at that time, the 1994 indictment was barred by the five-year statute of limitations set out in 18 U.S.C. Sec. 3282 (1994).

The district court denied the motion on two grounds. In an Amended Memorandum and Order dated May 8, 1995, reported at 885 F.Supp. 447, the court first ruled that the crime of being "found in" the United States without the requisite permission following deportation is a continuing offense that is not complete until the alien is discovered by the federal authorities. As to an alien who unlawfully enters the United States, is discovered, and thereafter absconds, the court ruled Alternatively, the court noted that the U.S.Code provides for the tolling of statutes of limitations with respect to a person "fleeing from justice," 18 U.S.C. Sec. 3290 (1994), a term that has generally been interpreted to mean a flight with intent to avoid or frustrate prosecution, and it concluded that Rivera-Ventura's abscondence in 1987 constituted such a flight.

that "he or she should be deemed to have made the decision to commit the separate offense of being in the United States illegally through evasion of the authorities, a crime completed whenever he or she is subsequently 'found.' " 885 F.Supp. at 450-51 (emphasis added). The court concluded that the 1994 indictment of Rivera-Ventura was timely because, though initially arrested in 1987, he was not again found until September 16, 1994, and thus his offense was not completed until the latter date.

A person flees from justice when he realizes that there is a high probability that he will be prosecuted for a crime and he hides or absents himself with the intent to frustrate prosecution. See, e.g., Streep v. United States, 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365 (1895); United States v. Catino, 735 F.2d 718, 722 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984); Jhirad v. Ferrandina, 536 F.2d 478, 483 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). It is not necessary that actual formal prosecution be commenced. See Streep, 160 U.S. at 133-34, 16 S.Ct. at 246 ("It is sufficient that there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not actually begun.").

....

The defendant's flight was from United States prosecutorial forces--the INS. He could have been criminally charged when he reentered this country illegally in 1987 after having once been deported. That the INS initially decided to deport, rather than prosecute him, does not allow him now to escape the consequences of his six-year flight. The defendant knew that deportation proceedings were scheduled because he requested and received a change of venue for them. Moreover, the defendant had been deported once before and can, therefore, be assumed to have been familiar with such proceedings. The evidence demonstrates that rather than submit to the jurisdiction of the deportation hearing, the defendant concealed himself with "the intent of avoiding arrest." The evidence includes his providing a false address to the INS in connection with the deportation hearing; his failure to contact the INS to correct the error; and his use of aliases in connection with his drunk driving offenses. Even if the statute of limitations began running in Texas in 1987, it was tolled during the time he was a fugitive. The statute of limitations, therefore, does not bar his prosecution for being "found."

885 F.Supp. at 451-52.

Rivera-Ventura was allowed to enter a conditional plea of guilty to the one-count indictment, reserving the right to appeal the denial of his statute-of-limitations motion.

II. DISCUSSION

Section 1326 provides, with certain exceptions not pertinent here, that "any alien who (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States," shall be fined or imprisoned or both. 8 U.S.C. Sec. 1326(a). Section 3282 of Title 18, which governs the time within which most noncapital federal offenses may be prosecuted, requires that an indictment be handed down "within five years next after such offense shall have been committed," and states that this five-year period may not be extended "[e]xcept as otherwise expressly provided by law." 18 U.S.C. Sec. 3282. One such express provision is that "[n]o statute of limitations shall extend to any person fleeing from justice." 18 U.S.C. Sec. 3290.

On this appeal, Rivera-Ventura contends that the district court erred in ruling that being "found in" the United States in violation of Sec. 1326(a) is a continuing offense as to which the statute of limitations provided by Sec. 3282 did not begin to run until he was re found in the United States in 1994. He also contends that the court erred in its alternative ruling that the statute was tolled under

Sec. 3290, arguing that that section has been interpreted to apply only to flights from criminal prosecution, that he was fleeing from deportation, and that deportation is a civil, not a criminal, process. Though we do not endorse the district court's ruling that being "found" in the United States within the meaning of Sec. 1326(a) constitutes a continuing offense, we agree...