U.S. v. Garcia-Moreno, 1:08-cr-10123.

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Citation626 F.Supp.2d 826
Docket NumberNo. 1:08-cr-10123.,1:08-cr-10123.
PartiesUNITED STATES of America, v. Andres GARCIA-MORENO, aka Roberto Barcall-Andrade, et al., Defendant.
Decision Date03 June 2009

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626 F.Supp.2d 826
Andres GARCIA-MORENO, aka Roberto Barcall-Andrade, et al., Defendant.
No. 1:08-cr-10123.
United States District Court, W.D. Tennessee, Eastern Division.
June 3, 2009.

Page 827

James W. Powell, U.S. Attorney's Office, Jackson, TN, for Plaintiff.


J. DANIEL BREEN, District Judge.

On November 17, 2008, a federal grand jury indicted Defendant, Andres Garcia-Moreno, on one count of violating 8 U.S.C. § 1326(a) and (b). The Defendant moves to dismiss this indictment under Rule 12, Federal Rules of Civil Procedure, arguing that his prosecution is prohibited by the five-year statute of limitations and the Double Jeopardy Clause of the United States Constitution. Upon consideration of his submission and the response by the Government, the Court GRANTS the Defendant's motion and dismisses the indictment as time-barred by the statute of limitations.


Garcia-Moreno is a native citizen of Mexico. (Docket Entry ("D.E.") No. 23, Report of Investigation, at 1.) On July 13, 1999, he was arrested in Collin County, Texas for forgery and possession of a controlled substance, which resulted in a 180-day jail sentence for each charge. (Id. at 2.) On March 9, 2000, officials arrested him at the Paso Del Norte Port of Entry in El Paso, Texas for using counterfeit immigration documents, 18 U.S.C. § 1001, and he was deported to Mexico through expedited removal. (Id.) Prior to departure, Garcia-Moreno signed a form advising him that, for a period of five years from the date of his departure, he would be prohibited from "entering, attempting to enter, or being in the United States." (D.E. 23, Notice to Alien form.) On March 12, 2000, he was arrested after reentering the country through the border around El Paso. (D.E. 23, Reinstatement Order.) Officer Manuel Ibarbo, a border patrol agent, signed and had Garcia-Moreno execute a form entitled "Notice of Intent/Decision to Reinstate Prior Order," which stated that the Defendant was "removable as an alien who has illegally reentered the United States after having been previously removed or departed voluntarily while under an order of exclusion, deportation or removal and therefore subject to removal by reinstatement of the prior order." (Id.) On March 30, 2000, the United States District Court for the Western District of Texas convicted

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him of violating 8 U.S.C. § 1325(a)(1),1 which criminalizes entering the United States at an unauthorized point, and sentenced him to three years unsupervised probation. (D.E. 23, Report of Investigation, at 2.) On the same day, the Immigration and Naturalization Service ("INS") issued a warrant of removal or deportation against him, but it apparently was not executed. (D.E. 23, Warrant of Removal.)

The Defendant subsequently violated the terms of his probation and was sentenced to incarceration at the Reeves County Detention Center in Pecos, Texas. On July 17, 2002, the INS filed an immigration detainer2 with the detention center, which stated that an "[i]nvestigation has been initiated to determine whether [Garcia-Moreno] is subject to removal from the United States." (D.E. 23, Detainer.) The Defendant was transferred from Reeves County on July 19, 2002 to Collins County, Texas, where he served a six month sentence for earlier state law convictions for forgery and drug possession. (D.E. 23, Mot. to Dismiss, at 4.) He was released into the United States after this sentence. (Id.) Garcia-Moreno claims that he has continuously remained in this country since March 12, 2000.(Id.)

On October 15, 2008, the Defendant was arrested by Tennessee law enforcement officers for possession of marijuana with intent to sell or deliver, but these charges were later dismissed. (D.E. 23, Report of Investigation, at 1.) On November 6, 2008, Officer David Johnston, an Immigration Enforcement Agent, interviewed him at the Haywood County Jail in Brownsville, Tennessee. (Id.) The Defendant admitted to being a citizen of Mexico without proper immigration documentation. (Id.) He initially provided the officer with an alias, but subsequent record checks revealed his true identity and previous deportation on March 9, 2000.(Id.) The officer detained the Defendant, suspecting that he was in violation of § 1326. (Id. at 2.)

On November 17, 2008, a federal grand jury returned the following single-count indictment:

On or about November 6, 2008, in the Western District of Tennessee, the defendant, [Garcia-Moreno,] an alien, entered and was found in the United States, after having been deported and removed therefrom on or about March 9, 2000 at El Paso, Texas, the said defendant having not obtained the express consent of the Attorney General of the United States to reapply for admission into the United States, in violation of Title 8, United States Code, Section 1326(a), (b).

(D.E. 1, Indictment.) The Defendant now seeks to have this charge dismissed.


Rule 12 permits pretrial consideration of any defense "the court can determine without a trial of the general issue." Fed. R.Crim.P. 12(b)(2). Generally, a motion to dismiss is "capable of determination" prior to trial when the issues raised involve "questions of law instead of questions of fact on the merits of criminal liability." United States v. Craft, 105 F.3d 1123, 1126 (6th Cir.1997). The Court may, however, "make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial

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court's conclusions do not invade the province of the ultimate factfinder." Id.


I. Statute of Limitations

The Defendant has been accused of violating the following statute:

[A]ny alien who—

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. § 1326. Several courts have determined that this statute articulates three separate offenses: "(1) illegal re-entry, (2) attempted illegal re-entry, and (3) being found illegally in the United States." United States v. Lennon, 372 F.3d 535, 537 (3rd Cir.2004) (citing United States v. DiSantillo, 615 F.2d 128, 134 (3d Cir.1980)). The Government bases its case against Garcia-Moreno on the "found in" portion of the statute. The applicable statute of limitations for this crime provides that "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." 18 U.S.C. § 3282.

The Defendant asserts that, for the purposes of § 1326, he was "found in" the United States by federal officers on March 12, 2000, which is evidenced by the "Notice of Intent/Decision to Reinstate Prior Order" signed by Officer Ibarbo. He argues that, because the statute of limitations should be calculated from the day he was "found," the indictment issued on November 17, 2008 is time-barred. In response to this argument, the Government avers that the criminal acts serving as the basis of the indictment concluded on November 6, 2008, when Officer Johnston found the Defendant in the Western District of Tennessee. In order to address the parties' arguments, the Court must first ascertain what event triggers the running of the statute of limitations for § 1326. No court in the Sixth Circuit has ever addressed this particular issue, and other circuits disagree as to the applicable rule of law. As such, the Court will treat this as an issue of first impression.

The United States Supreme Court has outlined the following considerations for determining how to calculate the statute of limitations for a particular crime:

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.

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Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) (superceded by statute on other grounds). Generally, courts should construe criminal limitations statutes liberally in favor of repose. Id. at 115, 90 S.Ct. 858 (quoting United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968); United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 76 L.Ed. 917 (1932)). The statute usually begins to run when a crime is "complete." Id. (citing Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 87 L.Ed. 368 (1943)). Typically, "an offense is complete as soon as every element in the crime occurs." Toussie, 397 U.S. at 124, 90 S.Ct. 858 (White, J., dissenting).

Ascertaining the elements of § 1326, several circuit courts have observed that a defendant is "found" when two things occur: "[1] his physical presence is discovered and noted by the immigration authorities, and...

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