United States v. Toma, Case No. 05–10068–JTM.

• Decision Date: 19 April 2012
• Docket Number: Case No. 05–10068–JTM.
• Citation: 869 F.Supp.2d 1315
• Parties: UNITED STATES of America, Plaintiff, v. Eugen Radu TOMA, Defendant.
• Court: U.S. District Court — District of Kansas

869 F.Supp.2d 1315

UNITED STATES of America, Plaintiff,

v.Eugen Radu TOMA, Defendant.

Case No. 05–10068–JTM.

United States District Court, D. Kansas.

April 19, 2012.

Brent I. Anderson, Office of United States Attorney, Wichita, KS, for Plaintiff.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

Six years after working in Wichita, Kansas while attending community college on a student visa, and after making multiple trips between the United States to the Netherlands, Dutch citizen Eugen Radu Toma learned in 2011 that the federal government has charged him with making false statements in connection with his 2005 Wichita employment. The court finds that the present prosecution violates Toma's constitutional right to a speedy trial, and grants his motion to dismiss.

Findings of Fact

In 2005, Toma, who was born in Romania but holds Dutch citizenship, lived in Wichita while he attended Butler County Community College. For approximately one month, Toma also worked as a Security Guard/Emergency Medical Technician at the Wichita Greyhound Park. In connection with that employment, on March 4, 2005 Toma completed a form Kansas Racing and Gaming Commission Occupation License Application. The completed form shows a checkmark in the box indicating that the person completing the form is a United States citizen. This checkmark forms the basis for the government's April 6, 2005 indictment of Toma for falsely claiming United States citizenship, in violation of 18 U.S.C. § 911.¹ Toma did not learn of the Indictment until six years later.

Shortly after his employment at the Greyhound Park, Toma transferred from Butler County Community College in Wichita to Cowley County Community College in Winfield, Kansas. In connection with the transfer, Toma gave a copy of his existing I–20—an authorization to attend school in the United States—to Cowley and was told they would issue a new one. He also reported his change of address with the Kansas Department of Motor Vehicles, and with the school's Designated School Official (DSO), thereby complying with 8 C.F.R. § 214.2(f)(17).

Carl Timmons, a Deportation Officer with ICE, testified that agents twice tried to locate Toma by checking residences. In addition, ICE Agent Jeffrey Artman created an entry into the Treasury Enforcement Database of Investigations (TECS), documenting the Indictment and federal arrest warrant for Toma. However, ICE agents did not enter Toma's name into NCIC, because they mistakenly believed that the U.S. Marshals Service entered defendants into NCIC whenever federal arrest warrants are issued. ICE agents themselves rarely make NCIC entries, because the agents normally already have custody of persons for whom criminal charges are brought. Timmons testified that protocol would require investigating agents to consult additional resources or databases, but could not testify that the agents actually followed any of these procedures in Toma's case.

On June 14, 2006, Toma was briefly detained near Buffalo, New York. Toma attempted to visit the Canadian side of Niagra Falls by crossing the Rainbow Bridge, but was refused entrance because he did not have a copy of his current I–20. Returning to the American side, his was detained by ICE officers for the same reason. There was no entry in NCIC to show the Wichita arrest warrant. The ICE officers did have access to the TECS system, but there is no evidence that they ever contacted agents in Wichita to learn the status of the Greyhound Park charges. Toma was held for approximately six hours and released.

Toma was interviewed by an immigration judge in July, 2006, and his sworn statement was introduced into evidence. At no time during the interview was Toma asked about the Wichita charges, and his statement does not mention the issue. ICE agents issued Toma a “notice to appear” for an immigration hearing on November 24, 2006, and released him into the United States.

On July 26, 2006, Toma left the United States for the Netherlands, where he continued his education in nursing.

According to the government, after learning of the Buffalo detention, Artman entered the information relating to the Wichita charges in NCIC on July 5, 2006. However, since NCIC information must be updated yearly, the active NCIC warrant notice was not renewed and expired in July 2007. The ICE TECS entry was updated on October 29, 2007 to reflect that the warrant remained outstanding.

In 2009, Toma sought and obtained a three-month tourist visa, and returned to America on April 16, 2009, for approximately two weeks. Toma was not questioned in the Netherlands about the Wichita charges during the visa application process, and was allowed to enter through customs despite the TECS entry. Accordingto the government, Customs officers later noticed the TECS entry and entered a lookout order for Toma. However, since ICE had allowed the NCIC active warrant entry to lapse, the lookout order was limited to 24 hours.

Toma made repeated trips to the United States during the next few months, returning for approximately two weeks in June, October, and December. In April, 2010, Toma returned to the United States and has lived here since that time. His tourist visa expired in June of 2009, and he obtained a new tourist visa prior to his return in October, 2009. At no time during these visa applications or during his travels did any ICE or Homeland Security Agent mention the Greyhound Park charges.²

In late 2009 or early 2010, Toma submitted an application for a nursing license to the State of Missouri. In connection with the application, Missouri issued a Notice of Criminal History Report, which showed an unrelated incident in 2003, and the Rainbow Bridge detention in 2006. It made no mention of the Wichita Indictment in 2005.

In 2010, Toma married an American citizen, Andrea Williams–Toma of Destin, Florida, whom he had originally met during one of his visits in 2009. After his marriage, he submitted an ICE Form I–485 application to adjust his status from B–2 Tourist to permanent resident. Toma first learned of the Wichita charges in March of 2011, after he hired an attorney to inquire into the status of his request to change status. The attorney performed a search, and discovered the Greyhound Park charges.

Toma made no effort to hide his location. He states that he and his wife have suffered stress once they learned of the criminal charges, and he has had to defer employment opportunities.

Toma's application is currently suspended because immigration officials, when investigating the application, learned of the outstanding federal arrest warrant and, on May 6, 2011, notified Toma he needed to provide additional information about the warrant and Indictment. On January 18, 2012, Toma, who had become “out of status” in the United States, turned himself in to ICE and Marshals Service officials in Wichita.

First Amendment

Defendant Toma has presented two motions seeking dismissal of the prosecution. In the first, he argues that the prosecution violates his free speech rights under the First Amendment. Specifically, he contends that the present prosecution violates his First Amendment rights, since the relevant statute, 18 U.S.C. § 911, punishes false statements of citizenship, without any explicit requirement of showing a governmental interest in the challenged statement.

Toma cites no case which has found § 911 unconstitutional. Courts which have addressed First Amendment challenges to either § 911 (or its predecessor, 8 U.S.C. § 746(a)(18)) have uniformly rejected them, adopting narrowing interpretations—such as requiring proof that the statement of citizenship was made in response to a person with legitimate reasons for inquiry—to satisfy constitutional scrutiny. See United States v. Esparza–Ponce, 193 F.3d 1133 (9th Cir.1999); United States v. Achtner, 144 F.2d 49, 52 (2nd Cir.1944); United States v. Franklin, 188 F.2d 182 (7th Cir.1951); United States v. Tandaric, 152 F.2d 3 (7th Cir.1945).

While the Tenth Circuit has not explicitly upheld the constitutionality of § 911, it has adopted just such a narrowing interpretation of the statute in its Pattern Jury Instructions, requiring additional proof that “the defendant knew he was not a citizen and deliberately made this false statement with intent to disobey or disregard the law.”

Further, while it has not explicitly endorsed the constitutionality of § 911, the Tenth Circuit has come about as close as possible. In United States v. Strandlof, 667 F.3d 1146 (10th Cir.2012), the court recently upheld the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b), which prohibits false claims of decorated service in the armed forces. In the course of concluding that the Act was constitutional, the court noted the existence of other instances of statutes prohibiting knowingly false statements, including 18 U.S.C. § 1001(a), which criminalizes false statements made to the government. It also observed:

Section 1001 is not a lone example. To the contrary, there are at least 100 other federal criminal statutes that penalize making false statements—none of which has been invalidated under the First Amendment. See United States v. Wells, 519 U.S. 482, 505, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (Stevens, J., dissenting) (“[A]t least 100 federal false statement statutes may be found in the United States Code. About 42 of them contain an express materiality requirement; approximately 54 do not.”). For example, it is a crime to falsely and willfully claim to be a citizen of the United States,18 U.S.C. § 911, and it is a crime to make a knowingly false statement for the purpose of establishing eligibility to vote, 42 U.S.C. § 1973i(c). Likewise, various perjury statutes criminalize false statements made under oath, even if the perjurer has no intent to mislead, and even if there is no harm to the tribunal or inquiry. See18 U.S.C. § 1623; 18 U.S.C. § 1621; Brogan [ v. United States], 522 U.S. [398,] 402 & n. 1, ...