United States v. Dennis Augustus Green , 133 F. App'x 666 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11913 ELEVENTH CIRCUIT
Non-Argument Calendar May 31, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00425-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS AUGUSTUS GREEN,
a.k.a. Frank A. Reid,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(May 31, 2005)
Before BIRCH, BLACK, and PRYOR, Circuit Judges.
PER CURIAM:
Dennis Augustus Green1 appeals his conviction for unlawful re-entry into
the United States by a previously deported aggravated felon, 8 U.S.C. §§ 1326(a),
(b)(2). The district court denied the motion to dismiss the charges because the
five-year statute of limitations for this crime was tolled. We AFFIRM, albeit on
somewhat different grounds.
I. BACKGROUND
The parties agree that, in 1987, Green was deported from the United States.
Despite that deportation, on 23 April 1997 Green, while living in the United
States, applied for permanent residence in the United States under the assumed
name of Frank Reid. Green submitted the application to the Immigration and
Naturalization Service (“INS”) along with fingerprints to be used for a criminal
background check conducted by the Federal Bureau of Investigation (“FBI”).
In August 1997, the FBI returned the fingerprint card to the INS, which
identified Frank Reid as Green, along with a “rap sheet” for Green. The FBI
information, however, was not immediately entered into Green’s INS file. In
December 1997, Patricia Dwyer interviewed Green to verify the information in his
application, but she did not have the results of the FBI identification in the file.
1
We note that the style of the case and indictment against Green spell his middle name
“Augustus” whereas his birth certificate, passport, and FBI files spell it “Agustus.” Any differences
in spelling throughout this opinion are associated with the document referenced.
2
The rap sheet indicated that Green had been arrested numerous times in the United
States from 1985-87 and once in 1996. It further indicated that his citizenship
status was unreported.
On Green’s application he indicated that he was married to Danette Reid
and that he was arrested on a marijuana charge in 1996. On the day of the
interview with Green, Dwyer requested that he provide more detailed information
regarding prior arrests, including police reports and court dispositions. In
February 1999, Dwyer attempted to call Green because there had been no further
response. She was only able to contact Danette and Danette’s employer who
indicated Green traveled back to Jamaica on family business. After these
conversations, Dwyer terminated Green’s application for permanent residency and
sent a letter to his address noting his abandonment of the application. Neither
Danette nor Green contacted the INS to correct the abandonment notification.
In January 2003, Green was arrested by the Tampa Police Department on
drug charges. After Tampa police reported that he may be an illegal alien, he was
taken into custody by the Bureau of Immigration and Customs Enforcement in
September 2003. Green was indicted for unlawful re-entry on 9 October 2003.
At trial, Green argued that the statute of limitations barred the charges
because the INS was on notice in 1997 that he had previously been deported and
3
should have prosecuted him within the required five-year period. The trial court
held that, even though the five-year statute of limitations began in August 1997, it
was tolled from February 1999 until January 2003. Thus, the district court denied
the motion to dismiss, and the jury convicted Green.
II. DISCUSSION
On appeal, Green challenges the district court’s finding that the statute of
limitations was tolled when the INS believed he was out of the country. He argues
that he was “found in” the United States for the purposes of 8 U.S.C. § 1326 and
the statute of limitations when the INS received his background check results
showing that he “was an individual that had been previously deported.”
Appellant’s Br. at 6-7.
We review the district court’s denial of a defendant’s motion to dismiss an
indictment for abuse of discretion and “‘the district court’s interpretation and
application of the statute of limitations’” de novo. United States v. Torres, 318
F.3d 1058, 1061 n.6 (11th Cir. 2003). Any alien who has been removed and
thereafter “enters, attempts to enter, or is at any time found in” the United States,
shall be fined or imprisoned. 8 U.S.C. §§ 1326(a)(1), (2). “The statute contains
three separate and distinct offenses, set forth disjunctively: entering, attempting to
4
enter, or being found in the United States.” United States v. Clarke, 312 F.3d
1343, 1346 (11th Cir. 2002) (per curiam) (quotation omitted).
The statute of limitations applicable to § 1326 is found in 18 U.S.C. § 3282,
and provides that “no person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or the information is
instituted within five years next after such offense shall have been
committed.” The purpose of a statute of limitations is to limit exposure to
criminal prosecution to a certain fixed period of time following the
occurrence of those acts the legislature has decided to punish by criminal
sanctions. The statute of limitations in criminal cases begins to run when
the crime is “complete.”. . . . [F]or the commission of the crime [of illegal
re-entry] to be complete, [a defendant] had to be “found in” the United
States.
To be “found in” the United States within the meaning of § 1326, the
alien must have entered surreptitiously, bypassing a recognized immigration
port of entry. The phrase ‘found in’ is synonymous with “discovered in.” . . .
. [F]or a defendant to be “found,” the government must either know or, with
the exercise of diligence typical of law enforcement authorities, could have
discovered the illegality of the defendant’s presence.
Id. (citations omitted). In Clarke, we cited the Seventh Circuit’s conclusion that
“an alien is ‘found’ within the meaning of § 1326 when the INS both discovers his
presence in the United States and knows that, because of his identity and status,
his presence here is illegal.” United States v. Herrera-Ordones, 190 F.3d 504, 510
(7th Cir. 1999); accord Clarke, 312 F.3d at 1348. We “may affirm for any reason
supported by the record, even if not relied on by the district court.” Cochran v.
U.S. Health Care Fin. Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).
5
The district court did not abuse its discretion by denying Green’s motion to
dismiss the indictment. Green submitted an application for permanent residency
under a false name, Frank Reid, in 1997, and fingerprints provided with the
application were determined to belong to Dennis Agustus Green. However,
Green’s immigration status was “unreported,” and he was not “found in” the
United States at that time, because the INS did not have both his identity and
immigration status. Although the INS, “with the ‘exercise of diligence typical of
law enforcement authorities,’ could have discovered the illegality of” Green’s
presence in 1997, Clarke, 312 F.3d at 1346 (citation omitted), it did not do so until
the Tampa Police contacted the INS about Green’s possible illegal immigration
status on 21 January 2003. The INS did, however, exhibit reasonable diligence by
(1) contacting Green’s wife to follow up on the INS’s request for additional
information on Green’s application, (2) learning from both Green’s wife and her
employer that Green left the country, and (3) notifying Green that his application
for permanent residency was being terminated as a result.
Therefore, on 21 January 2003, the INS knew (1) Green was present in the
United States, (2) that his identification was Dennis Green, and (3) that his
presence was illegal. Thus, the 9 October 2003, indictment was within the statute
of limitations period. Although the district court found that the statute of
6
limitations was tolled from March 1999 to January 2003, it did not abuse its
discretion by denying the motion to dismiss the indictment on statute of limitations
grounds.
III. CONCLUSION
Green brings this appeal of his conviction for unlawful re-entry into the
United States by a previously deported aggravated felon and argues that the
district court mistakenly denied his dismissal motion because the five-year statute
of limitations barred the action against him. As we have explained, the district
court properly dismissed the motion. Accordingly, we AFFIRM.
7