The opinion of the court was delivered by: JACK B. WEINSTEIN
Charged with being found in the United States following a previous arrest and deportation, 8 U.S.C. § 1326(a)(2), the defendant moved for dismissal of the indictment on the ground that his prosecution was barred by the five-year statute of limitations. 8 U.S.C. § 3282. The government contended that the defendant committed a continuing offense each day that he remained in the United States. It also asserted that, in any event, the statute of limitations was tolled by the defendant's flight from justice. The government's contentions are persuasive.
The defendant entered the United States illegally in September 1986. He was deported within a matter of weeks. Approximately one year later, on October 8, 1987, he was found by Immigration and Naturalization Service ("INS") agents after crossing from Mexico into Texas hidden in the back of a truck. Deportation proceedings were commenced. No criminal charges were filed at that time. The defendant requested and received a change of venue from Texas to New York for his deportation hearing.
He was released by the INS on bond. The address the defendant gave on his release was false. Hearings were scheduled for February 18, 1988. The defendant failed to appear.
Seven years later, in September of 1994, the defendant was discovered by INS agents when he was arrested for driving while intoxicated. He had been arrested several times previously on drunk driving charges, but each time he had given a false name.
On September 2, 1994, a warrant was issued for defendant's arrest for a violation of 8 U.S.C. § 1326. He was arrested on September 16, 1994 and indicted on October 17, 1994. The indictment reads:
In or about and between October 1987 and September 1994, within the Eastern District of New York and elsewhere, the defendant SANTOS RIVERA-VENTURA, an alien, who had been deported from the United States, was found in the United States without first having obtained the consent of the Attorney General of the United States.
It is undisputed that the defendant failed to seek the required permission from the Attorney General.
The statute that the defendant is charged with violating, 8 U.S.C. § 1326, criminalizes attempted entry, entry, or being found in the United States following a previous arrest and deportation. It provides: