United States v. Olivas-Perea

          James D. Tierney Acting United States Attorney Letitia Carroll Simms Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Marc H. Robert Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL BACKGROUND

         The 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 [841](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.

         Criminal 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 deported previously.

         Olivas-Perea 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.

         Olivas-Perea's fingerprints were sent to the Criminal Justice Information Services Division of the Federal Bureau of Investigation (“CJIS”).^[1] 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.”).^[2] 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 databases.”).

         Homeland 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.

         On July 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.

         On 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, Olivas-Perea).^[3]

         Because 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).

         PROCEDURAL HISTORY

         On 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).

         1. The Briefing.

         Olivas-Perea 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)).

         Olivas-Perea 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.

         The 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.

         The 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.

         Olivas-Perea 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. Olivas-Perea elaborates:

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 5.

         Olivas-Perea 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.

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