United States v. Rodriguez-Rodriguez ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4786
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERTO RODRIGUEZ-RODRIGUEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-113-S-01—John C. Shabaz, Judge.
____________
ARGUED MAY 11, 2006—DECIDED JULY 6, 2006
____________
Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Following his removal from
the United States, Alberto Rodriguez-Rodriguez returned by
stealth. State police stopped him in Texas for speeding. A
warrant check revealed that he was wanted in Wisconsin,
where he had failed to register as a sex offender following
his release from a state sentence, and he was extradited to
that state. Wisconsin alerted federal immigration officials
to his presence. A federal grand jury indicted Rodriguez-
Rodriguez under 8 U.S.C. §1326(a)(2), which makes it a
crime for any alien who has been removed from the United
States to enter, attempt to enter, or “at any time [be] found
in” this country, unless the Attorney General has given pre-
entry approval, which Rodriguez-Rodriguez neither sought
2 No. 05-4786
nor received. The district court accepted his conditional
guilty plea, see Fed. R. Crim. P. 11(a)(2), and sentenced him
to 48 months’ imprisonment.
The issue reserved by the conditional plea is whether
venue is proper in the Western District of Wisconsin.
Rodriguez-Rodriguez maintains that he was “found” in the
Southern District of Texas, where state police caught him
speeding, rather than the Western District of Wisconsin,
where he was handed over to the federal government.
Although he acknowledges that federal immigration
officials were ignorant of his presence in this country
until he reached Wisconsin, he maintains that they
should have discovered his violation of §1326(a) by estab-
lishing a program of information interchange with state
officials, who knew (from the documents he provided when
stopped for speeding) that he is a Mexican national. (He
does not contend that the national government could
require state officials to assist them, see Printz v. United
States, 521 U.S. 898 (1997), but assumes that they would
cooperate voluntarily if asked.) Unlike the alien in United
States v. Herrera-Ordones, 190 F.3d 504 (7th Cir. 1999),
who used aliases and false Social Security numbers to
postpone detection, Rodriguez-Rodriguez did not try to
deceive his captors. Thus he maintains that venue lies in
Texas—where, he is convinced, he would have received a
lower sentence under a “fast track” plea-and-sentence
program adopted to cope with the flux of criminal prosecu-
tions at the border.
Rodriguez-Rodriguez’s argument depends on the proposi-
tion that an alien may be “found” in only one district, which
supplies the exclusive venue. That may have been an
assumption of the panel in Herrera-Ordones, but assump-
tions are not holdings. See, e.g., Zenith Radio Corp. v.
United States, 437 U.S. 443, 462 (1978). Neither §1326 nor
8 U.S.C. §1329 (which governs venue for immigration
crimes) states or implies that an alien may be “found” just
No. 05-4786 3
once. Section 1329 says that a prosecution may be brought
“at any place in the United States at which the violation
may occur or at which the person charged with a violation
under [8 U.S.C. §1325 or §1326] may be apprehended.” Far
from specifying a one-unique-district approach, this statute
contemplates multiple lawful venues: “any place . . . at
which the violation may occur” or wherever the alien is
“apprehended.” Everything thus depends on §1326:
Rodriguez-Rodriguez cannot prevail unless §1326 itself
limits to one the number of districts in which the crime may
be committed.
Federal officials apprehended Rodriguez-Rodriguez in
Wisconsin—and his violation occurred there too, at least
in normal English usage. The point of using a word such
as “found” in §1326(a)(2) is to avoid any need to prove
where and when the alien entered; the offense follows the
alien. Just as it makes perfect sense to say that “the
lousewort is found in all 50 states,” so it makes sense—if it
is not an inevitable reading of the statute—to say that an
alien is “found” wherever he is. So if Rodriguez-Rodriguez
had been handed over to immigration officials in Texas, had
been released on recognizance and fled to Wisconsin, he
could be “found” a second time there; venue would lie in
either district. See United States v. Ruelas-Arreguin, 219
F.3d 1056, 1061 (9th Cir. 2000).
Rodriguez-Rodriguez assumes that the crime occurs only
at the instant of its detection, so that “being found” is
equivalent to “being arrested”. Ruelas-Arreguin may have
shared that assumption, though the court did not explain
why. The statutory language suggests to us, however, a
usage along the lines of our lousewort example: the alien
commits the offense wherever he goes. The crime is being in
the United States and is not limited to the instant at which
a federal agent lays hands on the person and a light bulb in
the agent’s head illuminates the mental sign “This guy’s an
illegal alien.”
4 No. 05-4786
Treatment of the “found” component of §1326(a)(2) as a
continuing offense is a logical consequence of its language.
The Supreme Court held in United States v. Cores, 356 U.S.
405 (1958), that a statute making it unlawful for a seaman
to be “present” in the United States more than 29 days
allowed by the crew’s conditional landing permit creates a
continuing offense; the Court contrasted this with the
clause of §1326 that forbids unlawful “entry” by a previ-
ously deported alien. An “entry” is complete when it occurs,
the Court stated, 356 U.S. at 408 n.6, while illegal “pres-
ence” is ongoing. The “found” clause in §1326 has the same
structure and function as the “presence” clause that the
Court considered in Cores. If presence in the United States
is a continuing offense, then being found in the United
States “at any time” must be a continuing offense too.
Many decisions (several of them cited in Herrera-Ordones)
assume or hold that an alien can be “found” just once for
purposes of the statute of limitations. Once an alien has
been placed in federal custody, these decisions conclude, the
five-year clock for prosecution continues ticking even if the
alien is released, lost in a bureaucratic shuffle, and relo-
cated a decade later in some other state. E.g., United States
v. Rivera-Ventura, 72 F.3d 277 (2d Cir. 1995); United States
v. DiSantillo, 615 F.2d 128 (3d Cir. 1980); United States v.
Gomez, 38 F.3d 1031, 1038 (8th Cir. 1994). We need not
decide whether this conclusion is correct; Rodriguez-
Rodriguez was prosecuted within the statute of limitations
by any measure. At all events a “one clock” rule does not
imply that there is also only one possible district of
prosecution—that if federal immigration officials take
custody of an alien in Arizona (starting the clock), after
which he skips bond and is recaptured in New Mexico, it is
impossible to begin or continue the prosecution in the latter
state. What sense could that make of the statutory text?
Rodriguez-Rodriguez does not cite, and we could not
locate, any appellate decision concluding (after an ad-
No. 05-4786 5
versarial presentation) that an alien may be “found” for
venue purposes in only one district, let alone that an alien
must be deemed “found” (and venue be fixed) in a place
where he was not reduced to custody by a federal agent.
The possibility that a peripatetic alien may be exposed to
prosecution in more than one district has been held proper
in several cases, of which Ruelas-Arreguin is just one
example, and is a commonplace for criminal statutes. In
drug cases, for example, prosecution is proper in any
district through (or over) which the defendant carries the
illegal drugs. See, e.g., United States v. Ramirez-Amaya,
812 F.2d 813, 816 (2d Cir. 1987). Dozens of similar cases
are collected and discussed in Charles Alan Wright,
2 Federal Practice and Procedure: Criminal §303 (3d ed.
2000). Just so with an alien whose entry makes himself a
form of contraband: the offense occurs wherever he is, and
in every district through which he passes.
The actual holding of Herrera-Ordones is that “whether
an alien was in a particular location by choice has no
relevance in venue determinations. Venue is proper any-
where in the United States, wherever the previously
deported and reentered alien is ‘found.’ ” 190 F.3d at 511.
Herrera-Ordones was arrested in northern Indiana and
transferred by state officials, for their own convenience, to
southern Indiana; we concluded that he could be prosecuted
in the Southern District of Indiana. Herrera-Ordones
establishes that, when an alien frustrates earlier discovery
of his identity and status, he is “found” and may be prose-
cuted when federal agents at last stumble upon him in state
prison; it does not hold (nor could it hold) that only when
earlier discovery was impossible does actual discovery of an
alien in state prison permit prosecution there. We now hold
that venue may be laid wherever the alien is located in fact,
and as often as he is located, whether or not better coordi-
nation and diligence would have alerted federal officials to
his presence and status earlier and elsewhere. There is no
6 No. 05-4786
“right to be arrested” at a time most convenient to the
defense. See Hoffa v. United States, 385 U.S. 293, 309-10
(1966); Mireles v. Gonzales, 433 F.3d 965, 969 (7th Cir.
2006).
According to Rodriguez-Rodriguez, this view allows
prosecutors to manipulate venue to aliens’ detriment.
Agents could wait until the alien wanders into a district
known for harsh sentences—or, worse, they could carry the
alien into that district themselves and prosecute him there.
If our reading of §1326 and §1329 gives prosecutors leeway
that could be misused, that would be nothing new. Prosecu-
tors often have wide choice of venue. In drug cases, for
example, prosecutors may choose the crime’s location by
deciding where undercover agents offer to buy or sell drugs
from suspects, or from what districts they place phone calls
that set up transactions. We have rejected all arguments
that use of these options is forbidden— provided only that
the activity falls short of entrapment, and Rodriguez-
Rodriguez does not contend that he was entrapped into
committing the §1326 offense.
In particular we have criticized Judge Friendly’s cele-
brated (though never followed) holding in United States v.
Archer, 486 F.2d 670 (2d Cir. 1973), that federal agents
must not maneuver a state crime into federal court by
adding an interstate element such as a phone call or trip to
a second state. United States v. Podolsky, 798 F.2d 177 (7th
Cir. 1986), holds that Archer has no force unless the agents’
acts amount to entrapment—and if entrapment does occur,
the Archer principle is unnecessary for the defendant’s
protection. A rule against “venue manipulation” might be
subsumed in the Archer principle, but having rejected in
Podolsky the full scope of Archer we must for consistency
add that agents may influence where the federal crime
occurs, and thus where venue lies, as well as whether the
crime comes under federal rather than state law. The
entrapment doctrine protects the defendant against manu-
No. 05-4786 7
factured offenses (unless the defendant is predisposed); it
does not limit venue. Accord, United States v. al-Talib, 55
F.3d 923, 929 (4th Cir. 1995) (“There is no such thing as [a
rule against] ‘manufactured venue’ or ‘venue entrapment.’”).
All of the defendant’s legitimate interests are fully
protected by Fed. R. Crim. P. 21(b), which permits judges to
transfer prosecutions “in the interest of justice”. Rodriguez-
Rodriguez asked for a transfer to Texas under this rule, but
the district judge did not abuse his discretion in denying the
motion. The crime was committed in Wisconsin every bit as
much as in Texas, and his presence in Wisconsin was
attributable to his violation of state law in Wisconsin rather
than an attempt by the federal prosecutor to obtain a
strategic advantage. As for convenience of proof: the
absence of permission to return would have been estab-
lished (had Rodriguez-Rodriguez stood trial) by a search of
files at the Department of Justice in Washington D.C., and
scattered offices of the Department of Homeland Security.
Wisconsin was a sensible place for prosecution, because
Rodriguez-Rodriguez was in custody there already.
One final subject. Rodriguez-Rodriguez contends that he
should have received in Wisconsin the same reduced
sentence that would have been available had he pleaded
guilty in a district with a “fast track” program. Two recent
decisions reject that argument: United States v. Martinez-
Martinez, 442 F.3d 539 (7th Cir. 2006), holds that a sen-
tence in a district without a fast-track program need not be
reduced, and United States v. Galicia-Cardenas, 443 F.3d
553 (7th Cir. 2006), adds that it must not be reduced.
Congress authorized fast-track programs in a few district
courts not for the benefit of defendants (so that they can re-
reenter the United States illegally all the sooner) but to
help prosecutors and judges reduce the queue of pending
cases. Each defendant who pleads guilty in such a program
receives a lower sentence; speedy disposition frees up
prosecutorial time and judicial resources to achieve more
8 No. 05-4786
convictions, augmenting deterrence. Reducing the sentence
of a defendant in a district such as Wisconsin, which does
not need to offer inducements in order to make room for
additional prosecutions, would sacrifice both deterrence and
desert for no good reason.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-6-06