United States v. Gonzales
| Decision Date | 19 September 2013 |
| Docket Number | No. 13 Cr. 254 (LTS),13 Cr. 254 (LTS) |
| Parties | UNITED STATES OF AMERICA, v. JOSE ANTONIO TRAD GONZALES, Defendant. |
| Court | U.S. District Court — Southern District of New York |
This motion to dismiss an indictment presents the question of what is required to prove that a non-resident of the United States is a fugitive from justice. Defendant Jose Antonio Trad Gonzales ("Defendant" or "Trad Gonzales"), charged pursuant to 21 U.S.C. § 846 in a one-count Indictment with conspiracy to possess with intent to distribute cocaine, from 2006 to 2007, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), moves to dismiss with prejudice all charges against him, citing 18 U.S.C. § 3282 and arguing that the 2013 indictment filed in this matter was untimely. Trad Gonzales was arrested on March 28, 2013, as he attempted to re-enter the United States from Mexico. The Government asserts that Trad Gonzales' indictment is timely because the statute of limitations was tolled pursuant to 18 U.S.C. § 3290 by reason of the Defendant's alleged flight from justice, inferred from his lack of recorded border crossings into the United States from 2007 to 2013.
The Court held an evidentiary hearing on Trad Gonzales' motion on Tuesday, September 10, 2013, and Thursday, September 12, 2013. Having carefully considered the testimony at the hearing, the parties' initial and supplemental submissions and their arguments, for the following reasons, the Court grants Defendant's motion. This Memorandum Opinion and Order sets forth the Court's findings of fact for purposes of Federal Rule of Criminal Procedure12(d) and its conclusions of law.
At the evidentiary hearing, live testimony was provided by three agents: Special Agent Matthew Maguire of the Department of State ("SA Maguire"); Officer Deep Chopra ("Officer Chopra") of the Department of Homeland Security; and Special Agent Lee ("SA Lee") of Homeland Security Investigations, who was the case agent assigned to this case. The Defendant also testified. Through SA Lee, the Government introduced the statement of a cooperating witness concerning Trad Gonzales' alleged participation in the crime charged. The Defense also proffered the testimony of Defendant's sister, Martha Isabel Trad Gonzales, through a sworn affidavit. She placed one of Defendant's last return trips to the United States as occurring in December 2006, as opposed to in or around 2007 or 2009, as the Defendant testified. The Court, having considered carefully the testimony and demeanor of the witnesses and the other evidentiary submissions, finds the essential facts as follows.
Trad Gonzales is a citizen of Mexico and has lived at the same address in Reynosa, Tamaulipas, Mexico since the 1970s. The town of Reynosa borders the state of Texas, and Trad Gonzales' residence is no more than five or six miles from the border crossing. There is a U.S. Consulate in the adjacent town of Matamoros and a Department of Homeland Security ("DHS") Office within the vicinity. Defendant is a former Mexican federal law enforcement agent, a lawyer who has served in a prosecutor's office and, up until the time of his arrest, was an employee of the Public Works Department of his municipality.1 His name and address are listed with his telephone number, which has remained the same at all relevant times, in the localtelephone book.
In 2006, Trad Gonzales traveled to the United States with a man whom he knew as Roberto Gonzalez. The Government proffers that the individual is also known as Jose Zumaya ("Zumaya") and that, when Zumaya began cooperating with the Government, he told the Government that he and Trad Gonzales had twice flown from McAllen, Texas, to pick up and deliver drugs and cash for an individual named Johnny Jacob, as part of a larger narcotics conspiracy. After these proffer sessions, in 2007, SA Lee was able to corroborate Zumaya's account of traveling to New York City with Trad Gonzales in August and September 2006, by subpoenaing airline tickets and hotel receipts. The subpoenaed records reflect that Trad Gonzales registered under his own name and real address and provided his telephone number. Trad Gonzales also opened a Bank of America bank account while in the United States at this time. The bank account was opened under the Defendant's own name and his address in Mexico appears in many of the related Bank of America records. The Government proffered no evidence of illegal activity by Trad Gonzales after the two September and August 2006 trips to the United States. Trad Gonzales testified that prior to his own arrest, he learned of Zumaya's arrest and that the charges against Zumaya involved drugs.2
According to the United States Consular Consolidated Database records, maintained by the Department of State, Trad Gonzales has had two border crossing cards that incorporated B1/B2 visas, authorizing him to enter and to remain temporarily in the United States. The United States Customs and Border Protection ("CBP") records reflect that TradGonzales crossed into the United States 18 times in 2002; 41 times in 2003; 10 times in 2004; 17 times in 2005; 19 times in 2006; once (on May 8, 2007) in 2007, and not at all from May 8, 2007 until March 28, 2013, when Trad Gonzales was arrested at a Texas border crossing. The Government witnesses testified that, to cross the United States/Mexico border by land, each person has to have valid travel documents and that those documents are swiped through computerized machinery. None of the Government witnesses had served at border crossings in Texas, however, and they had no knowledge of actual practice at the crossings that Trad Gonzales had used. (see, e.g., Tr. 29:21-25 ). They also acknowledged that there is equipment at the border that photographs the license plates of vehicles passing in and out of the United States, but no records of such photographs or details of that aspect of the program were introduced.
Trad Gonzales testified credibly that his border crossing card became mutilated and was no longer machine-readable in between 2007 and 2009. The Defendant testified that the card became caught in a car seat and was mutilated and that he discussed the damaged card when he traveled over the border with his daughter Sofia to visit a Harley Davidson store. In the sworn affidavit from his sister, Martha Trad Gonzales, she testifies that this trip occurred in December 2006, and that her brother's border crossing card was damaged at that time. This testimony was corroborated by government Exhibit 1, consisting of printouts from CBP's border crossing record system (referred to as "TECS"), which reflects that Trad Gonzales' card was found mutilated during a crossing on December 23, 2006, and that Trad Gonzales was told that he would no longer be able to cross with that card. Trad Gonzales did not apply to renew the card, which had an expiration date of November 2010, and testified that he continued thereafterto use it for border crossings until it expired in 2010. The Defendant also testified credibly that, when his card was no longer machine readable, the border officials entered the information manually or merely made visual verification of the card. Trad Gonzales also testified credibly that he would cross the border to teach golf at several golf clubs in Texas during these years, and named those golf clubs and the people with whom he worked at the clubs - testimony which was not rebutted by the Government. Trad Gonzales had no valid visa in 2011 and 2012, and did not apply for a new card until 2013. He was arrested when he attempted to enter the United States with the new card on March 28, 2013.
Federal law enforcement officials obtained a warrant for Trad Gonzales' arrest on narcotics charges on the basis of a Complaint on February 25, 2009. The Government obtained the original indictment in this case charging Trad Gonzales with conspiracy to distribute and possess with intent to distribute cocaine on April 3, 2013. This indictment was superseded on August 5, 2013, with the only change being that the dates of the alleged conspiracy were expanded from October 2006 to May 2007, to 2006 to 2007. Despite the fact that they had hotel and bank records listing the same Mexican address for Trad Gonzales since 2007, the government agents investigating the case made no attempt to discern whether Trad Gonzales could be found at that address, either directly or through the Mexican authorities. SA Lee, the case agent, testified that he chose not to follow up on the address that Trad Gonzales had provided, which included the Defendant's street name and house number, town, country and postal code, because he does not understand Mexican addresses and was "not familiar with how a Mexican address should look" even though he noted that Mexican addresses "seem[ed] to be like set up like you would if there was a U.S. address." (Tr. 135:3-7.) SA Lee also testified that, although the people within DHS could have helped interpret the address for him, he did not seekany assistance from them in interpreting or locating the address from them. SA Lee further testified that the DHS maintains an office in the vicinity of Trad Gonzales' Mexican residence and that there is an extradition treaty in effect between the United States and Mexico.3
Instead, after Zumaya had identified a photograph of the Defendant, SA Lee put a "lookout" alert on Trad Gonzales' immigration file in 2007, so that any attempted reentry into the United States would be flagged when the Defendant's border card was scanned or manually entered into the TECS system. A "lookout" means, that if Trad Gonzales came into contact with a Customs and Border Protection official at a port of entry, the system would send a computer-generated email to SA Lee. No such entry was flagged...
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