United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Letitia Carroll
Simms Assistant United States Attorney United States
Attorney's Office Albuquerque, New Mexico Attorneys for
H. Robert Assistant Federal Public Defender Federal Public
Defender's Office Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Motion to Dismiss Information for Violation of Statute of
Limitations, filed June 2, 2017 (Doc. 33)(“MTD”).
The Court held an evidentiary hearing on July 17, 2017. The
primary issue is whether Defendant Maximo Olivas-Perea, a
Mexican citizen who was deported in 2005, was
“found” -- as that word is used in 8 U.S.C.
§ 1326 -- in the United States of America when he was
booked into the Santa Fe County Detention Center in Santa Fe,
New Mexico on June 11, 2011 -- approximately five-and-a-half
years before Plaintiff United States charged Olivas-Perea in
this case -- thereby triggering 18 U.S.C. § 3282's
five-year statute of limitations. The Court concludes that,
on June 13, 2011, federal immigration authorities knew that:
(i) Olivas-Perea was in the United States; and (ii)
Olivas-Perea had been deported previously. The Court also
concludes that federal immigration authorities could have
determined Olivas-Perea's whereabouts soon thereafter
with the diligence typical of law enforcement. Accordingly,
more than five years passed between when Olivas-Perea was
found in the United States and the United States charged
Olivas-Perea with Reentry of a Removed Alien (“Illegal
Reentry”). Information, filed December 2, 2016 (Doc.
15)(“Information”). Section 3282's five-year
statute of limitations therefore bars Olivas-Perea's
prosecution, so the Court grants the MTD.
United States' Criminal Complaint, filed December 23,
2015 (Doc. 1)(“Criminal Complaint”), states:
A review of Maximo OLIVAS-Perea's immigration file
revealed that he is a citizen and national of Mexico who was
ordered removed from the United States by an Immigration
Judge in El Paso, TX on April 7, 1997 and was physically
removed from the United States to Mexico on April 8, 1997.
Maximo OLIVAS-Perea was last removed from the United States
to Mexico on April 8, 1997. Maximo OLIVAS-Perea was ordered
removed from the United States subsequent to a conviction for
Possession with Intent to Distribute more than 50 kilograms
of Marijuana in violation of 21 USC 841(a)(1) and 21 USC
(b)(1)(C) on March 16, 1994 in U.S. District Court for
the District of New Mexico.
There is no evidence in the immigration file of Maximo
OLIVAS-Perea applying for or receiving permission to re-enter
the United States.
Complaint at 2. The Court takes facts from the Criminal
Complaint for the purpose of deciding the MTD, but it
acknowledges that Olivas-Perea is presumed innocent and that,
in a criminal prosecution, the United States would need to
prove, beyond a reasonable doubt, all of the elements of
Illegal Reentry, including that Olivas-Perea had been
was booked into the Santa Fe County Detention Center on June
11, 2011 for failure to appear. See Defendant's
Exhibit E at 2 (“Booking Form”). See
also MTD ¶ 15, at 7; Inmate Booking List for
OLIVAS, MAX at 1, filed June 2, 2017 (Doc.
33-3)(“Booking List”). Olivas-Perea was booked as
“Max Olivas.” Booking List at 1. See
United States' Response to Defendant's Motion to
Dismiss Information for Violation of Statute of Limitations
(Doc. 33) at 1, filed June 23, 2017 (Doc.
35)(“Response”). Olivas-Perea's fingerprints
were taken while he was in custody. See Response at
1. Just over three hours later, in the early morning of June
12, 2011, Olivas-Perea was released on bond. See
Booking List at 1.
fingerprints were sent to the Criminal Justice Information
Services Division of the Federal Bureau of Investigation
(“CJIS”). See Department of Homeland
Security Person Summary at 1, filed June 23, 2017 (Doc.
36-1)(“DHS Person Summary”); Transcript of
Hearing at 31:1-9 (Simms, Saucuedo), held July 17, 2017
(“Tr.”). CJIS then sent those fingerprints to the
Department of Homeland Security (“Homeland
Security”) to check the fingerprints against its
immigration database. See DHS Person Summary at 1;
Secured Communities at 1, filed June 2, 2017 (Doc.
33-1)(“For decades, local jurisdictions have shared the
fingerprints of individuals arrested and/or booked into
custody with the FBI to see if those individuals have a
criminal record and outstanding warrants. Under Secured
Communities, the FBI automatically sends the fingerprints to
Homeland Security to check against its immigration
Security matched Olivas-Perea's fingerprints taken by the
Santa Fe Police Department with the fingerprints it had on
file from Olivas-Perea's earlier encounters with federal
immigration authorities. See DHS Person Summary at
1. The DHS Person Summary lists several variations on
Olivas-Perea's name, including: (i) Maximo Olivas Perea;
(ii) Max Olivas; and (iii) Maximo Olivas-Perea. See
DHS Person Summary at 1. That entry on the DHS Person Summary
is dated June 13, 2011. See DHS Person Summary at 1.
24, 2013, the Santa Fe Police Department again arrested
Olivas-Perea. See Response at 1; Criminal Complaint
at 1. He was arrested for Aggravated Driving While
Intoxicated. See Response at 1; Criminal Complaint
at 1. Olivas-Perea was photographed and fingerprinted as part
of this law-enforcement encounter. See Response at
1-2; Criminal Complaint at 1. Olivas-Perea was released on
bond the next day. See Booking List at 1.
March 25, 2014, Olivas-Perea renewed his New Mexico
driver's license. See Response at 2; Tr. 59:6-14
(Robert, Saucuedo); Criminal Complaint at 1.
Olivas-Perea's renewed driver's license listed his
address as 3612 North Platte Road, Santa Fe, New Mexico.
See Tr. at 65:22-24 (Simms). Olivas-Perea moved to
that address “a couple of years” before his 2011
arrest. Tr. at 14:2-5 (Olivas-Perea). Olivas-Perea continued
to live at that address until he was arrested in 2016.
See Tr. at 15:23-16:4, 19-23 (Robert,
of Olivas-Perea's driver's license renewal, local
Immigration and Customs Enforcement (“ICE”)
officers received a referral from ICE's National Criminal
Analysis and Targeting Center (“NCATC”) on
December 18, 2015. See Response at 2; Tr. at 66:3-8
(Simms). The NCATC matched the photograph from
Olivas-Perea's driver's license renewal to the
photograph and fingerprints from Olivas-Perea's 2013
arrest. See Tr. at 66:3-8 (Simms); Criminal
Complaint at 1. The NCATC referral accordingly told the local
ICE officers that “Defendant, a prior deported
aggravated felon, was residing in Santa Fe County.”
Response at 2. See Criminal Complaint at 1. Federal
immigration authorities filed the Criminal Complaint,
alleging Illegal Reentry, on December 23, 2015. See
Criminal Complaint at 1. That day, an arrest warrant was
issued. See Arrest Warrant at 1, filed December 23,
2015 (Doc. 2). The warrant was returned on November 14, 2016,
and the return indicated that Olivas-Perea was arrested on
that day in Santa Fe. See Arrest Warrant and Return
at 1 (warrant dated December 23, 2015)(return dated November
14, 2016), filed November 15, 2016 (Doc. 7).
December 2, 2016, the United States charged Olivas-Perea with
Illegal Reentry. See Information at 1, filed
December 2, 2016 (Doc. 15)(“Information”).
See also Waiver of Indictment, filed December 2,
2016 (Doc. 16). The Information alleges that Olivas-Perea was
found “[o]n or about December 18, 2015.”
Information at 1. On the same day that the United States
instituted the Information, the parties notified the Court of
a fast track plea agreement under rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. See Fast Track
Plea Agreement at 1, filed December 2, 2016 (Doc.
18)(“Plea Agreement”). Based on the Plea
Agreement, see Plea Agreement ¶ 4(e), at 3-4,
“pursuant to U.S.S.G. § 5K3.1, the United States
move[d] for a downward departure from the otherwise
applicable adjusted offense level, ” United States'
Motion for § 5K3.1 Downward Departure, filed Mar. 13,
2017 (Doc. 30)(“Motion for Downward Departure”).
The Court rejected the Plea Agreement, see
Sentencing Minute Sheet at 2, filed March 13, 2017 (Doc. 29),
and denied the Motion for Downward Departure, see
Order, filed March 13, 2017 (Doc. 31). Because the Court
rejected the Plea Agreement, Olivas-Perea withdrew his guilty
plea. See Notice of Withdrawal of Guilty Plea at 2,
filed May 8, 2017 (Doc. 32).
filed the MTD on June 2, 2017. See MTD at 9.
Olivas-Perea argues that “[t]he information in this
cause was filed more than five years after the government
knew, or in the exercise of appropriate diligence should have
known, that Mr. Olivas was present in the United States, in
violation of the relevant statute of limitations.” MTD
¶ 1, at 1. Olivas-Perea contends that an Illegal Reentry
offense is complete “‘when the government knows,
or could have known through the exercise of diligence typical
of law enforcement, the following: (1) the defendant is a
prior deportee, (2) the defendant is illegally present in the
United States (i.e., the defendant is an illegal alien), and
(3) the defendant's whereabouts.'” MTD ¶
11, at 5 (quoting United States v. Villarreal-Ortiz,
553 F.3d 1326, 1330 (10th Cir. 2009)(per curiam)).
argues that, because the Secured Communities program became
active in Santa Fe County, New Mexico on February 8, 2011,
see MTD ¶ 15, at 7, “[t]he government,
and specifically [Homeland Security], was aware, or in the
exercise of the diligence reasonably expected of law
enforcement should have been aware, of Mr. Olivas'
presence in the United States . . . and the fact that he was
a previously deported and presently deportable person on June
11, 2011, ” MTD ¶ 18, at 7-8. See Secured
Communities at 1, filed June 2, 2017 (Doc. 33-1)(“For
decades, local jurisdictions have shared the fingerprints of
individuals arrested and/or booked into custody with the FBI
to see if those individuals have a criminal record and
outstanding warrants. Under Secured Communities, the FBI
automatically sends the fingerprints to DHS to check against
its immigration databases.”). According to
Olivas-Perea, “[Homeland Security] was aware, or in the
exercise of the diligence reasonably expected of law
enforcement should have been aware, of . . . his whereabouts,
” MTD ¶ 18, at 7-8, because he was “booked
into the Santa Fe County Detention Center” under his
own name, MTD ¶ 17, at 7, and because he “remained
in the United States continuously from on or before June 11,
2011[;] [h]e lived in Santa Fe with his family[; and h]e was
not in hiding or seeking to avoid detection, ” MTD
¶ 16, at 7.
United States filed its Response on June 23, 2017.
See Response at 7. The United States argues that
Olivas-Perea was not found in the United States until
December 18, 2015, because that date is “when agents
discovered defendant's status as a previously deported
alien.” Response at 5. The United States contends that
Olivas-Perea's June 11, 2011, arrest took place on a
Saturday night, and Olivas-Perea was released just after
midnight on Sunday morning, so, “[a]lthough jail
personnel submitted Defendant's fingerprints, . . . there
would have been no one on the other side of the submission .
. . to make a match” and thereby determine
Olivas-Perea's immigration status. Response at 5. The
United States argues: “In fact, Government's
Exhibit 1 shows the prints were not submitted until the
following Monday, June 13, 2011, over 24 hours after
Defendant had been released.” Response at 5 (citing DHS
Person Summary at 1). It follows, according to the United
States, that “the Defendant was released before
authorities would have been able to ascertain his legal
status.” Response at 5.
United States also argues that Olivas-Perea “concealed
his true identity by giving the name ‘Max Olivas, '
rather than his full name.” Response at 6.
“Knowledge of defendant's physical presence in the
United States and his status as a previously deported alien
should not be imputed to the government when Defendant
surreptitiously reentered the United States and used a false
name.” Response at 6.
filed his reply brief on July 14, 2017. See Mr.
Olivas' Reply to the Government's Response to Motion
to Dismiss at 7, filed July 14, 2017 (Doc.
44)(“Reply”). Olivas-Perea states that, in the
MTD, he based his argument on Santa Fe County's
“participation in the Secure Communities program,
giving rise to a presumption that ICE had
‘constructive' knowledge of his illegal presence in
the United States on, or shortly after, his booking
into” the Santa Fe County jail. Reply at 2.
Mr. Olivas does not abandon that argument; however, in its
response to the motion to dismiss, the government submitted
evidence which proves that ICE in fact had actual knowledge
of Mr. Olivas's illegal presence in the United States as
of June 13, 2011. See [DHS Person Summary at 1].
This document demonstrates that, as of June 13, 2011, DHS
possessed actual knowledge that Mr. Olivas, a prior deportee,
was illegally present in the United States. The only question
that remains, therefore, is whether law enforcement knew, or
could have known “through the exercise of diligence
typical of law enforcement, ” the final element of the
inquiry: Mr. Olivas's whereabouts.
Knowing Mr. Olivas's whereabouts does not mean that law
enforcement had to know Mr. Olivas's precise location;
nor, as the government appears to suggest, does it require
that Mr. Olivas have remained incarcerated. If
“diligence typical of law enforcement” required
only that the authorities be able to find people in jail,
that would be cause for concern for the efficacy of law
enforcement. This element requires only that, through the
exertion of reasonable efforts, the kind we would expect from
professional law enforcement, authorities could find Mr.
Olivas at or around the time that those authorities became
aware of the fact of his arrest.
Reply at 3. Olivas-Perea then argues that federal immigration
authorities could have determined his whereabouts in June of
2011, because ICE received the same information on June 13,
2011 as it did in the December 18, 2015 referral from NCATC.
See Reply at 4. Olivas-Perea elaborates:
The only difference is that, in response to the information
it received in 2011, ICE did nothing, and in response to the
information it received in 2015, ICE exercised diligence
typical of law enforcement by pulling Mr. Olivas's
driver's license, matching up his driver's license
photo with his DHS photo, and, eventually, obtaining and
executing an arrest warrant on Mr. Olivas. These actions
constitute “the exercise of diligence typical of law
enforcement.” The mere fact that ICE apparently chose
not to exercise the same diligence in 2011 does not excuse
the violation of the statute of limitations.
Reply at 4. Olivas-Perea also contends that “[t]he
complete booking form from the Santa Fe County Detention
Facility prepared in connection with his June, 2011 arrest
includes substantial detailed information about Mr. Olivas,
including his residence address” -- which is where
Olivas-Perea returned after being released on June 12, 2013,
and where he continued to reside until he was arrested in
this case -- such that “[n]o investigative skill would
have been required to locate Mr. Olivas following his release
from Santa Fe County custody in June of 2011.” Reply at
5. According to Olivas-Perea, that he obtained a copy of the
booking form from the June 11, 2011, arrest “with a
simple IPRA [Inspection of Public Records Act, N.M. Stat.
Ann. § 14-2-1 to -12] request, a process available even
to those not a part of law enforcement” means that
“[s]uch an effort is surely within ‘the exercise
of diligence typical of law enforcement.'” Reply at
then addressed the United States' argument that
“Mr. Olivas' use of an ‘alias' absolved
law enforcement of its obligation to exercise typical
diligence.” Reply at 5. Olivas-Perea first notes that
the DHS Person Summary indicates that Homeland Security
equated “Max Olivas” with “Maximo
Olivas-Perea.” See Reply at 5 (citing DHS
Person Summary at 1). Olivas-Perea then casts aspersions on
“the suggestion that ‘Max Olivas' is an alias
of such cunning as to be able to confound the police in their
search for ‘Maximo Olivas-Perea.'” Reply at
5. Olivas-Perea then concludes by observing that “Mr.
Olivas gave his true name, or at least the proper diminutive
of it, his correct residence address and other personal
identifying information, leaving minimally diligent law
enforcement officers a clearly observable record of Mr.
Olivas' presence, status and trail to his
whereabouts.” Reply at 6.