The opinion of the court was delivered by: Chin, D.J.
On December 23, 2006, defendant Kenneth Thomas, a citizen of the United Kingdom, was flying from London to New Zealand to meet his common law wife for the holidays. His plane landed at Los Angeles International Airport ("LAX") for what was scheduled to be a three-hour layover. Instead, United States authorities arrested him on an indictment that had been filed in this District three months earlier, charging him with illegally entering, attempting to enter, or being found in the United States, after having been previously deported from the country, in violation of 8 U.S.C. § 1326. He has been held in custody since his arrest.
Thomas moves to dismiss the indictment, arguing that the charges are barred by the applicable statute of limitations because he re-entered the United States more than five years before the indictment was filed and because he has not been present in the United States since 1999. The Government acknowledges that the statute of limitations has expired on the charge of illegal re-entry, but argues that the statute of limitations has not run on the charge that Thomas was "found in" the United States because federal authorities did not learn until May 2006 that Thomas had been arrested in New York state court in October 1999 for criminal trespass. The Government acknowledges, however, that it is not aware of any evidence of Thomas's presence in the country from 1999 until he was arrested at LAX in December 2006. Indeed, it appears that Thomas was not in the country when he was indicted in September 2006 for, inter alia, being "found in" the United States.
The issue presented is whether a defendant can be "found in" the United States for purposes of 8 U.S.C. § 1326 when he is no longer in the country and the Government is unaware of his whereabouts. I conclude that he cannot, and that Thomas could not have been "found in" the United States when he was indicted because he was not physically present in the country at that time and the Government was unaware of his whereabouts. Accordingly, it would appear that the indictment is legally insufficient.
Thomas, a citizen of the United Kingdom, first entered the United States on September 11, 1990, without a visa, pursuant to the Visa Waiver Pilot Program (the "VWPP"). (Def. Mem. of Law 2). Under this program, entrants to the United States were authorized to remain in the United States for a period not to exceed ninety days. (Def. Notice of Mot. Ex. C). Under the VWPP, an entrant waived his right to review of a deportability finding made by the Immigration and Naturalization Service ("INS"), although any application for asylum filed with INS would be decided by an immigration judge. (Def. Not. of Mot. Ex. B).
Thomas overstayed his 1990 entrance under the VWPP. (Def. Not. of Mot. Ex. C). He was arrested by the New York Police Department (the "NYPD") on January 6, 1992, and charged with third degree criminal possession and sale of a controlled substance. (Hickey Aff. Ex. A). Thomas pled guilty, and was sentenced to a term of one to three years' imprisonment. (Harrison Aff. Ex. A).
On April 26, 1993, while Thomas was incarcerated for the offenses in New York, INS issued Thomas an order to show cause and notice of hearing regarding deportation. (Def. Notice of Mot. Ex. C). A hearing was held on December 13, 1993, but subsequently INS determined that because Thomas had entered pursuant to the VWPP, he had waived any right to contest deportability (other than by applying for asylum), and consequently he was not entitled to a hearing. (Def. Notice of Mot. Exs. G, H). A warrant for deportation was issued by INS on February 16, 1994 (Hickey Aff. Ex. B), and thereafter Thomas was deported from the United States. (Def. Mem. of Law 2).
Sometime prior to October 17, 1999, Thomas reentered the United States. On that date, he was arrested by the NYPD for criminal trespass in the third degree. (Hickey Aff. Ex. C). He was arraigned, and pled guilty the following day. (Harrison Aff. Ex. C). He subsequently failed to appear or pay the required surcharge fee, and a bench warrant was issued for his arrest on December 20, 1999. (Harrison Aff. ¶ 6 & Ex. A). At some point after October 17, 1999, Thomas voluntarily departed the United States.
The record contains no evidence to suggest that Thomas was present in the United States from December 1999 until his arrest at LAX in December 2006. (See 6/15/07 Tr. 8 (Government acknowledging it had no evidence that Thomas was in the United States between December 1999 and December 2006)). Thomas contends that he was not present in this country during that time period. (Def. Mem. of Law 2).*fn1
On May 25, 2006, Immigration and Customs Enforcement ("ICE"), the successor agency to INS, first became aware of Thomas's 1999 arrest following his 1994 deportation. (Harrison Aff. ¶ 12; 6/15/07 Tr. 9-10). On September 19, 2006, the Government filed an indictment in this Court, charging Thomas with violating 8 U.S.C. §§ 1326(a) and (b)(2), in that "[f]rom at least October 1999, up to and including the date of" the indictment, Thomas "did enter, and was found in the United States, after having been deported" therefrom. (Indict.). An arrest warrant was issued the same day.
On December 23, 2006, Thomas arrived at LAX in transit between London and New Zealand. (5/17/07 Yanella Ltr. Ex. B). His travel documents show that he was scheduled for a three-hour layover before departing from LAX to New Zealand. (Id.). International travelers who are present in a United States airport for such a layover still must present paperwork to a Customs inspector. (6/15/07 Tr. 12). When Thomas did so at LAX on December 23rd, he was arrested. (Hickey Aff. ¶ 5 & Ex. D).*fn2
Thomas first appeared in this Court on January 11, 2007, and was assigned counsel. He requested and was granted new counsel on February 28, 2007. The new attorney, however, asked to be relieved. The request was granted and a third attorney --Thomas's present counsel -- was appointed on March 20, 2007.
On May 11, 2007, Thomas moved to dismiss the indictment, contending: (1) the statute of limitations had run on any violation of § 1326, because he reentered the United States prior to the 1999 arrest, more than five years before he was indicted, and the Government had no proof that Thomas was present in the United States after December 1999, and (2) there were defects in the underlying deportation proceedings.
I heard argument on the motion on June 15, 2007. I denied the second prong of the motion, ruling from the bench that Thomas was not entitled to a deportation hearing because he had waived the right to contest deportation (other than to apply for asylum) when he entered the country pursuant to the ...