December 6, 1994, a notice was sent to Defendant at a New York
address advising him of a deportation hearing that had been
scheduled to commence on May 18, 1995, in Arizona. (Baum Aff. ¶ 6
& Ex. D.) Defendant did not appear at the scheduled hearing in
Arizona. (Tr. of Jan. 4, 2000 at 4.)
On October 21, 1996, Defendant was interviewed by an INS agent
at the 25th Police Precinct in New York City. (Baum Aff. ¶ 7 &
Ex. E.) Defendant provided the INS agent with another false name
and date of birth, but admitted that he had illegally entered the
United States in September 1994. (Baum Aff. ¶ 6 & Ex. E.) As a
result, a Warrant of Deportation was issued by the INS in New
York on October 22, 1996. (Baum Aff.Ex. F.)
On May 7, 1997, while being interviewed by an INS official at
Rikers Island, Defendant admitted for the first time to the INS
that he had been previously deported and provided a correct name
and date of birth. (Brown Aff.Ex. B.) Defendant's identity as a
prior deportee was confirmed by a fingerprint check on June 4,
1997. (Baum Aff.Ex. J.)
The instant Indictment for illegal reentry was filed on
September 2, 1999, just under five years from the date of
Defendant's illegal reentry into Arizona.
Defendant now moves to dismiss the Indictment on the ground
that venue is improperly laid within the Southern District of New
Venue for illegal reentry is proper in any district in which
"the violation may occur." 8 U.S.C. § 1329. Illegal reentry
subsequent to deportation can be committed in any of three
ways:*fn2 when a previously deported alien (1) "enters"; (2)
"attempts to enter"; or (3) "is at any time found in" the United
States. 8 U.S.C. § 1326(a).
The Second Circuit has expressly held that a violation of
"found in" is not a continuing offense. United States v.
Rivera-Ventura, 72 F.3d 277, 282 (2d Cir. 1995) (completeness of
offense of being "`found in' the United States . . . 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"). However, a violation of § 1326 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." Id. Venue lies in the district in
which the offense is completed. Id.
Defendant contends that even though he gave a false name,
country of origin and date of birth when seized upon entering
Arizona illegally, that because he was fingerprinted by INS
authorities in Arizona, the Government should be charged with
constructive knowledge of his illegal reentry status as well as
his obvious illegal status. (Def.'s Mem. at 2-6.) Therefore, the
Defendant contends that he was "found in" Arizona, and not the
Southern District of New York. Id. The Government asserts that
Defendant was "found in" the Southern District of New York on or
around May 7, 1997, when Defendant first admitted to an INS
official that he had illegally reentered the United States
subsequent to a prior deportation. (Gov.'s Mem. at 2.)
Defendant in this case was not "found in" Arizona at the time
of his initial arrest in September, 1994 because, although INS
was aware of Defendant's physical presence, they were not aware
that he had previously been deported.*fn3 "When an alien
reenters the country by using an alias, or uses false
identification, when his illegal presence in the United States is
discovered, he is not identifiable and hence not `found.'"
United States v. Herrera-Ordones, 190 F.3d 504, 510 (7th Cir.
1999). The fact that Defendant was fingerprinted does not suggest
that the Government had constructive knowledge of Defendant's
prior deportation. United States v. Bencomo-Castillo,
176 F.3d 1300, 1304 (10th Cir. 1999) ("declin[ing] . . . to second-guess
the FBI's processing [of] suspects' fingerprints,"
notwithstanding "typical diligence" requirement of
8 U.S.C. § 1326).
In this case, the Defendant was "found", and the offense of
illegal reentry complete, when INS agents in the Southern
District of New York became aware, on May 7, 1997, that Defendant
had previously been deported. Thus, venue properly lies in the
Southern District of New York.
Defendant's motion to dismiss based on improper venue is
DENIED. The parties are directed to appear for a status
conference on Monday, March 27, 2000, at 10:00 a.m.