The opinion of the court was delivered by: William M. Skretny United States District Judge
Currently before me are the Government's motion for reconsideration of this Court's decision on venue for an unlawful entry charge in violation of 8 U.S.C. § 1326 (Docket No. 27), Defendant's motion to preclude the Government from presenting videotape evidence or testimony regarding his July 20, 2006 statements (Docket No. 34), and Defendant's motion to dismiss Count Two of the Indictment (Docket No. 40). For the following reasons, the Government's motion for reconsideration is denied, Defendant's motion to preclude is granted in part and denied in part, and Defendant's motion to dismiss is denied.
On July 20, 2006, Defendant was on a bus traveling from the United States to Canada via the Peace Bridge. (DH*fn1 11, 14, 15, 18.) Canadian Immigration called U.S. Customs and Border Inspection to verify whether Defendant was a permanent resident of the U.S. as he stated to a Canadian Immigration officer. (DH 11.) After U.S. officials advised that Defendant was not a permanent U.S. resident as claimed, he was denied admission to Canada and the bus in which he was traveling was sent back to the U.S. side of the Peace Bridge. (DH 11, 14, 15, 18.) Once there, Defendant was interviewed by William Schoenrock, a U.S. Customs and Border Protection enforcement officer. (DH 11, 20.) Defendant stated that he had entered the United States in July of 2003, hidden in the trunk of his wife's vehicle. (DH 20.)
A. The Government's Motion for Reconsideration
The Government claims that, on September 5, 2006, it incorrectly conceded that venue for an unlawful entry charge in violation of section 1326(a) is proper only in the judicial district where the entry actually occurred. The Government now takes the position that an unlawful entry is a continuing offense which can be venued in the district where the defendant was ultimately apprehended.
Defendant argues that only the 'found in' violation is a continuing offense and that attempted entry and entry are complete upon their occurrence. Having reviewed the authority previously presented on the motion in limine, and the additional cases cited on the motion for reconsideration, I agree with Defendant.
An illegal entry can constitute a distinct offense in and of itself, or it may serve as the predicate act to a 'found in' violation. There is no dispute here that a charge of 'found in,' as alleged in Count One, is a continuing offense and venue is proper in the Western District of New York if Defendant was found here.
However, numerous cases, including those cited by Defendant, have concluded that the offense of unlawful entry is complete when it occurs. See United States v. Cores, 356 U.S. 405, 2 L.Ed. 2d 873, 408 n.6 (1958) ("crimes of illegal entry set out in . . . 8 U.S.C. §§ 1325 [and] 1326 . . . are not continuing ones, as 'entry' is limited to a particular locality and hardly suggests continuity"); United States v. Gomez, 38 F.3d 1031, 1034 (8th Cir. 1994) ("The offenses of entry and attempted entry are complete when the deported alien enters or attempts to enter . . . . In contrast . . . , a 'found in' violation is a continuing violation that is not complete until the alien is 'discovered' by immigration authorities.") (citing United States v. DiSantillo, 615 F.2d 128, 135, 137 (3d Cir. 1980)); see also, United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995) ("The offense of illegal entry or illegal attempt . . . is complete as soon as the entry or attempt is made.")
It is beyond dispute that a criminal defendant has the right to be tried where the crime allegedly was committed. CONSTITUTION OF THE UNITED STATES, article III, section 2 and Sixth Amendment; Fed. R. Crim. P. 18. In determining where a crime was committed for venue purposes, "a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts. United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed. 2d 388 (1999). All aspects of an unlawful entry are complete with the entry itself, and I find that venue is proper only where the entry occurred.
As the Second Circuit noted in United States v. Whittaker, 999 F.2d 38, 42 (2d Cir. 1993), there are two ways in which a previously deported alien may re-enter the United States; first, through a recognized INS port of entry where the alien's status should have been detected but for some reason was not; and second, by a surreptitious entry. It was this second situation that caused Congress to add the 'found in' language to the Act in 1972. The 'found in' offense, which is a continuing violation, addresses both the statute of limitations and venue problems attendant to a surreptitious entry that is undetected by authorities.
In sum, an unlawful entry is treated as a continuing violation only to the extent it is alleged to be the predicate act to a 'found in' offense, as is charged in Count One of the Indictment. To the extent the Government wishes to pursue unlawful entry as a separate offense, as is charged in Count Two, it must be prepared to show that the entry itself occurred somewhere in the ...