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United States v. Jimenez

United States District Court, M.D. Florida, Fort Myers Division

December 19, 2019


          OPINION AND ORDER [1]

          Sheripolster Chappell United States District Judge.

         Before 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.

         This is 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.

(Doc. 1).

         Jimenez 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.

         For its 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.

         Boiled 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.

         Article 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).

         There 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.

         Section 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.

         As stated, the Eleventh Circuit has not addressed whether § 1326 “found in” crimes are continuing offenses for venue.[2] Against this silence, the Court turns to the other circuits for guidance.

         Particularly 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.

         The 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 ...

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