United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
Sheripolster Chappell United States District Judge.
the Court is Defendant Fidel Antonio Jimenez's Motion to
Dismiss Indictment (Doc. 16), the Government's
response (Doc. 17), and Jimenez's reply
(Doc. 21). For the below reasons, the Court grants
in part and denies in part the motion.
an illegal alien reentry case with a venue dispute. Jimenez
is an El Salvadorian citizen who was deported from the United
States over a decade ago but came back. On January 11, 2019,
Jimenez was arrested by local police in the Middle District
of Florida. Seven months later, he was sentenced to time
served. Jimenez was then transferred to a Miami-Dade
Department of Corrections facility-in the Southern District
of Florida-because of an outstanding warrant. While there,
Immigration and Customs Enforcement (“ICE”)
caught wind of him and lodged an immigration detainer. About
ten days after ICE took custody of Jimenez, a grand jury in
the Middle District indicted him for being a once deported
alien found unlawfully in the United States in violation of 8
U.S.C. § 1326(a). The Indictment reads:
On or about January 11, 2019, in the Middle District of
Florida, the defendant, FIDEL ANTONIO JIMENEZ a/k/a Antonio
Jose Benavides, being an alien of the United States, who
previously had been deported, excluded, and removed from the
United States on or about January 31, 2003, and who had not
received the consent of the Attorney General or the Secretary
of Homeland Security to reapply for admission to the United
States, was found to be voluntarily in the United States.
now moves to dismiss the Indictment for improper venue under
Federal Rule of Criminal Procedure 12(b)(3)(A)(i).
He says the Middle District is improper because ICE found him
in the Southern District. From there, he argues the Southern
District also cannot hear this case because he was
involuntarily brought there. Because neither the Middle nor
Southern Districts are proper venues, he moves to dismiss the
Indictment with prejudice.
part, the Government concedes ICE found Jimenez in the
Southern District. But it argues it can still prosecute
Jimenez in the Middle District because § 1326(a) is a
continuing offense that may be prosecuted anywhere the crime
begins, continues, or ends. The Government asserts Jimenez
completed the § 1326(a) crime in the Southern District,
but he had been continuing that same crime earlier while in
the Middle District.
down, this Court must decide whether Jimenez can be
prosecuted in the Middle District under § 1326(a) when
ICE first found him in the Southern District. The Eleventh
Circuit has not squarely addressed this issue, so the Court
must start with the basics of venue.
III and the Sixth Amendment of the United States Constitution
safeguard a defendant's right to be tried in the State
and district where the crime was allegedly committed. U.S.
Const. art. III, § 2, cl. 3; U.S. Const. amend. VI;
see also United States v. Cabrales, 524
U.S. 1, 6 (1998) (“The Constitution twice safeguards
the defendant's venue right.”). Federal Rule of
Criminal Procedure 18 reinforces this constitutional
guarantee. Fed. R. Crim. P. 18 (stating the government must
“prosecute an offense in a district where the offense
was committed”). The Government must show, by a
preponderance of the evidence, that the charged offense
occurred in the district where it is prosecuting the
defendant. See United States v. Burroughs,
830 F.2d 1574, 1580 (11th Cir. 1987).
are two venue statutes at play-one generic and another
specific. The generic statute, 18 U.S.C. § 3237, covers
any crime that is a continuing offense. It says,
“[e]xcept as otherwise expressly provided by enactment
of Congress, any offense against the United States begun in
one district and completed in another, or committed in more
than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or
completed.” 18 U.S.C. § 3237. Section 1326(a) has
a specific venue provision fixing venue for prosecution of
the crime. Under 8 U.S.C. § 1329, venue is proper at any
place in the United States where “the violation may
occur” or the defendant “may be
apprehended.” The former applies. Where the violation
may occur is dictated by § 1326(a): where the alien
enters, attempts to enter, or is found in the United States.
See United States v. Orona-Ibarra, 831 F.3d 867, 874
(7th Cir. 2016). Both statutes require the Court to examine
Jimenez's charged § 1326(a) offense to decide venue.
1326(a) criminalizes three separate acts by deported aliens:
entering, attempting to enter, or being at any time found in
the United States. 8 U.S.C. § 1326(a) (emphasis added).
Jimenez faces only a “found in” offense. As such,
the Court focuses only on that offense. Being “found
in” is synonymous with being “discovered
in” the United States. United States v.
Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991). It
starts when the alien enters the country and ends when
federal immigration officials actually or constructively know
of his illegal status. See United States v.
Clarke, 312 F.3d 1343, 1348 (11th Cir. 2002); United
States v. Castrillon-Gonzalez, 77 F.3d 403, 406 (11th
Cir. 1996). ICE undisputedly found Jimenez in the Southern
District. So, a straightforward reading of § 1329
renders venue proper there. But the continuing offense venue
statute complicates matters.
stated, the Eleventh Circuit has not addressed whether §
1326 “found in” crimes are continuing offenses
for venue. Against this silence, the Court turns to
the other circuits for guidance.
persuasive is United States v. Hernandez, 189 F.3d
785 (9th Cir. 1999). In Hernandez, the defendant was
arrested in Oregon for a traffic violation. While in custody,
a federal agent from the Immigration and Naturalization
Service (“INS”) determined he illegally reentered
the country without permission. Rather than prosecute him in
an Oregon federal court, the defendant was transferred to the
State of Washington for an outstanding arrest warrant. While
in prison there, another INS agent interviewed the defendant
and placed a detainer on him. After the defendant served his
state sentence, INS took custody of him and a grand jury in
the Western District of Washington indicted him for violating
§ 1326(a). The defendant moved to dismiss the indictment
for improper venue.
Ninth Circuit agreed with the defendant. It found,
“[t]he offense of being found in the United States ends
when an alien is discovered and identified by the immigration
authorities. We conclude that the crime is completed at that
point not only for statute of ...