Opinion
01 Cr. 98 (TPG)
May 31, 2002
Defendant has been indicted on a charge of illegally re-entering and being found in the United States without permission of the Attorney General and therefore in violation of 8 U.S.C. § 1326 (a).
Defendant moves to dismiss the indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure on the basis that it is time-barred.
The Government opposes defendant's motion. The Government contends that the indictment is timely, and therefore should not be dismissed.
The motion is denied.
Facts
On or about August 15, 1973, defendant Wayne Morgan was admitted to the United States as a visitor for pleasure and was authorized to remain in the country until September 10, 1973. After September 10, 1973, defendant continued to remain in the United States without authorization from the Immigration and Naturalization Service ("INS").
On May 16, 1988, defendant was convicted of attempted murder in the second degree in New York Supreme Court, Bronx County. Defendant was sentenced to a term of incarceration ranging from two and a half years to seven years.
On February 15, 1991, defendant was granted conditional parole for deportation only. As a condition to deportation, defendant was not to return to the United States prior to the maximum expiration date of his sentence without approval of the New York State Board of Parole. On or about March 1, 1991, defendant was ordered to be deported to England and on March 9, 1991, defendant was deported. However, in October 1991, defendant illegally re-entered the United States.
On October 23, 1991, in Bronx County, defendant was arrested and charged with criminal possession of a controlled substance in the third degree, criminal possession of marijuana, criminal use of drug paraphernalia, and criminal possession of a firearm in the fourth degree.
On October 24, 1991, Susan Sagarin, a New York State Parole Officer at the Operations Bureau in Albany, received an arrest notification from the Alerts Bureau that defendant had been arrested in the Bronx on drugs and weapons charges. Sagarin's responsibilities as a Parole Officer included monitoring case files of releases such as defendant who had returned to the United States illegally and/or without notifying the Board of Parole.
In an affidavit, Sagarin stated that upon receiving notice of defendant's arrest, she called the New York City Department of Corrections Inmate Locator Service and determined that defendant was incarcerated at the Bronx House of Detention Center. Sagarin also stated that she followed procedure and notified the INS authorities that defendant had returned to the United States and was incarcerated in the Bronx.
William Giamio, a Special Agent with the INS assigned to the New York Office, stated in an affidavit that he has reviewed defendant's file and there is no record of any notification from Sagarin regarding defendant's re-entry into the United States
In her affidavit, Sagarin also stated that she prepared a violation of release report for the purpose of having a warrant lodged against defendant. On or about October 30, 1991, the New York State Division of Parole lodged a warrant against defendant due to defendant's violation of parole in connection with the 1988 attempted murder charges.
Susan Sagarin also indicated in her affidavit that the warrant was not served upon defendant because defendant was released on bail on October 26, 1991. Defendant contends that he was released on December 26, 1991. Sagarin stated in her affidavit that the December 26, 1991 release date asserted by defendant is taken from his supplemental violation of release report and should be disregarded because it is a typographical error.
After defendant was released on bail, defendant failed to appear for scheduled court appearances pertaining to the 1991 drug charges, and a bench warrant was issued for his arrest on September 1, 1992. At the same time, defendant was indicted on the violation of parole charges and classified as an absconder.
On or about October 11, 1995, defendant was arrested under the alias "Anthony Smith" and charged with criminal sale of marijuana. Defendant's true identity, however, was ascertained, and on October 26, 1995, a preliminary hearing was held regarding defendant's violation of parole. This hearing occurred before Hearing Officer Gayle Walthall at the Long Island City Courthouse.
At the hearing, a document bearing the INS letterhead was admitted into evidence. The document was addressed to Senior Parole Officer, Terry Schiff of the Sing Sing Correctional Facility. The document contained defendant's true name and stated that defendant was deported to England on March 9, 1991. The document was signed by Deportation Officer Gwendolyn Scott. The hearing transcript indicates that the document was dated April 15, 1995, but the Government asserts that the 1995 date is an error.
The Government asserts that the document at issue is a routine letter which the INS sent to Schiff in 1991 to inform Schiff that defendant's "parole for deportation only" case had been completed. The Government has furnished the court with a copy of this letter and it is dated April 15, 1991.
Sometime around the October 26, 1995 hearing for violation of parole, defendant was convicted in connection with his October 15, 1995 arrest for possession of marijuana. On or about November 2, 1995, defendant was sentenced to a thirty day term of incarceration. Despite being identified by the parole board as Wayne Morgan, defendant was convicted and sentenced under his alias "Anthony Smith."
On January 18, 1996, a New York State Parole Revocation proceeding occurred at Rikers Island. The hearing was video taped. Since no appeal was taken or transcript requested within a three year period of the hearing, the video tape was destroyed.
On February 8, 1996, when defendant failed to appear for incarceration in connection with the 1995 drug charges, a bench warrant was issued for defendant's arrest This warrant was also issued under defendant's alias.
Sometime later defendant must have been apprehended because in October 1997 defendant was tried for the 1991 charges. On October 8, 1997, in connection with the 1991 charges, defendant was convicted upon a jury verdict of criminal possession of a controlled substance in the third degree and sentenced to a term of imprisonment ranging from six to twelve years.
Defendant was also returned on the bench warrant relating to the 1995 charges and convicted on June 2, 1998 at which time defendant was re-sentenced on his 1995 conviction.
The New York State Department of Corrections then sent the INS an alien conviction report for defendant under his proper name, Wayne Morgan, with his correct date of birth, December 9, 1960. The report is dated October 29, 1997. The INS proceeded with an investigation to determine whether defendant had entered the country illegally.
On November 3, 1997, INS agents interviewed defendant at Ulster Correctional Facility. Defendant admitted that he had last re-entered the United States in or about 1994 using a false birth certificate. A computer search was then ordered in July 1998 to ascertain whether defendant had applied to the U.S. Attorney General for permission to lawfully re-enter the United States as well as to determine if defendant had otherwise legally entered the country.
On February 7, 2001, a federal grand jury in the Southern District returned a one-count indictment against defendant, charging him with illegally re-entering the United Sates and being found here without the permission of the United States Attorney General. Specifically, the indictment charges defendant as follows:
On or about November 3, 1997, in the Southern District of New York and elsewhere, Wayne Morgan, the defendant, being an alien who had previously been deported from the United States subsequent to a conviction for the commission of an aggravated felony, to wit, a conviction in the Supreme Court of the State of New York, Bronx County, on or about May 16, 1988, for attempted murder in the Second Degree, unlawfully, wilfully, and knowingly did thereafter enter, and was found in, the United States, without previously having obtained the express consent of the Attorney General of the United States to reapply for admission.
The Motion
Defendant moves to dismiss the February 7, 2001 indictment as time-barred. Defendant argues that in or about October 1995 the INS either knew or should have known about his illegal re-entry into the United States. Defendant relies of the affidavit of Sagarin representing that she followed procedure and provided notice to the INS in 1991 of defendant's possible criminal alien status to argue that such notification in all likelihood was also furnished to the INS in 1995. Defendant further relies on the transcript of defendant's 1995 New York State parole violation hearing which indicates that by letter dated April 15, 1995 the INS corresponded with N.Y.S. Parole Officer Schiff regarding defendant and therefore suggests that the INS knew about defendant's entry into the United States.Discussion
Section 1326 provides 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. § 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. § 3282.
The offense of illegal entry or illegal attempt is normally uncomplicated and is complete as soon as the entry or attempt is made.See, United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995). The offense of being "found in" the United States, however, is somewhat more complex, since it depends not only on the conduct of the alien but also on acts and knowledge of the federal authorities. See id. Thus, since the alien may be in the United States unlawfully after making a surreptitious border crossing that conceals his presence or after entering through a recognized port by means of specious documentation that conceals the illegality of his presence, the offense of being "found in" the United States in violation of § 1326(a) is not complete until the authorities both discover the illegal alien in the United States and know, or with the exercise of diligence typical of law enforcement authorities could have discovered, the illegality of his presence. See id. at 281-282.
A provision critical to the present case is that no "statute of limitations shall extend to any person fleeing from justice." 18 U.S.C. § 3290. See, United States v. Rivera-Ventura, 72 F.3d 277, 285 (2d Cir. 1995) (interpreting 18 U.S.C. § 3290's "fleeing from justice" concept to encompass one who is subject to both deportation and prosecution for re-entering the United States unlawfully and who seeks to avoid either prosecution or both prosecution and deportation by giving authorities false information in order to conceal himself); and United States v. Morgan, 922 F.2d 1495, 1498-99 (10th Cir. 1991) (fleeing justice be it state or federal triggers the tolling provision of 18 U.S.C. § 3290 and divests a defendant of the privilege of the federal statute of limitations).
In order to constitute fleeing from justice, it is sufficient that there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not actually begun. Rivera-Ventura at 282. The concept of fleeing for purposes of § 3290's application is liberally construed and encompasses not only physical flight but also constructive flight, so that a person's absence from a jurisdiction would constitute fleeing within the meaning of § 3290 if his intent in remaining absent was to avoid arrest. Id. at 283.
Here, defendant's intent to flee prosecution in 1995 can be inferred from his obvious intent to conceal his identity by using an alias and from his knowledge that he could be criminally prosecuted for violating his parole as well as other misconduct. See Rivera-Ventura at 285.
As the Second Circuit has held, an alien who is subject to criminal prosecution and who gives law enforcement authorities false names and addresses has engaged in acts of self-concealment that may be properly found to constitute constructive flight within the meaning of § 3290. See Rivera-Ventura at 285.
Since defendant not only used an alias in connection with the charges against him in 1995 but also fled prosecution in connection with those charges and was not apprehended until sometime in 1997, the statute of limitations was tolled until October 29, 1997 when the INS not only obtained information showing that the defendant had been apprehended but also verified defendant's illegal re-entry into the United States. Therefore, the February 7, 2001 indictment is not time-barred as it is within the five year statute of limitations period as measured from October 29, 1997.
Conclusion
Defendant's motion to dismiss the indictment against him as untimely is denied.