IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50438
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SERGIO LUIS DELGADO-NUÑEZ,
A.K.A. SERGIO LUIS DELGADO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
June 20, 2002
Before REAVLEY, SMITH, and DENNIS, having been arrested for an unrelated offense,
Circuit Judges. he was found by an INS agent in Big Spring,
Texas, in September 1997. Big Spring is in
JERRY E. SMITH, Circuit Judge: the Northern District of Texas.
I. While in custody at Big Spring, Delgado
Sergio Luis Delgado-Nuñez (“Delgado”), admitted to the INS agent that he had reen-
then a permanent resident of the United States, tered the United States illegally. From Sep-
was deported in 1994 following a felony drug tember 1997 to September 1999, he remained
conviction. In 1997, he illegally reentered the in state law enforcement custody at various
United States using his old green card. After locations. He eventually was transported by
state authorities to San Antonio in the Western appellate correction.” Koon v. United States,
District of Texas. 518 U.S. 81, 100 (1996). Thus, abuse of dis-
cretion review of purely legal questions such
In December 1999, Delgado was convicted, as those raised by Delgado is effectively
in the United States District Court for the de novo, because “[a] district court by defini-
Western District of Texas, of illegal presence tion abuses its discretion when it makes an
in the United States under 8 U.S.C. § 1326 error of law.” Id.
(1994) and received a 150-month sentence.
He appeals the conviction and sentence, claim- B.
ing that trial in the Western District violated The district court held that Delgado waived
his Sixth Amendment venue rights, that the his objection to venue by failing to raise it be-
district court erred in departing upward from fore or during trial. “A defendant indicted by
the sentencing guidelines, and that, under an instrument which lacks sufficient allegations
Apprendi v. New Jersey, 530 U.S. 466 (2000), to establish venue waives any future challenges
his indictment was required to allege that his by failing to object before trial. In situations
prior deportation was the result of a felony where adequate allegations are made but the
conviction. Finding no error, we affirm. impropriety of venue only becomes apparent at
the close of the government’s case, a defen-
II. dant may address the error by objecting at that
A. time, and thus preserving the issue for appel-
We first address Delgado’s venue claim. late review.” United States v. Carreon-
The standard of review is in dispute, with Del- Palacio, 267 F.3d 381, 392-93 (5th Cir.
gado claiming that de novo review applies, 2001).
while the government argues that it should be
abuse of discretion. As a general rule, “con- The key point is that, under Carreon-Pala-
stitutional and other legal questions” are re- cio, objection at the close of trial is
viewed de novo. United States v. Brown, 250 appropriate solely where “the impropriety of
F.3d 907, 912 (5th Cir.), cert. denied, 531 venue only becomes apparent at the close of
U.S. 1111 (2001). But, “[w]e review all ques- the government’s case.” Id. The opinion in
tions concerning venue under the abuse of United States v. Black Cloud, 590 F.2d 270
discretion standard.”1 In practice, however, (8th Cir. 1979), on which Carreon-Palacio
“[l]ittle turns . . . on whether we label review relied, is even more unequivocal on this point.
of this particular question abuse of discretion See Carreon-Palacio, 267 F.3d at 392 (relying
or de novo, for an abuse-of-discretion standard on Black Cloud as “helpful and persuasive”
does not mean a mistake of law is beyond authority). It held that “venue objections are
waived unless made prior to trial” in all cases
except “when an indictment contains a proper
1
United States v. Asibor, 109 F.3d 1023, 1037
allegation of venue so that the defendant has
(5th Cir. 1997) (emphasis added); cf. United States no notice of a defect of venue until the
v. Hemmingson, 157 F.3d 347, 355-56 (5th Cir. government rests its case.” Black Cloud, 590
1998) (distinguishing “questions of constitutional F.2d at 272 (emphasis added). Four other
law” from “venue and severance decisions” and circuits have adopted rules similar to that of
holding that the latter are reviewed only for abuse Black Cloud, holding that the venue issue is
of discretion).
2
waived when not raised before or during trial lenging venue in the event of a conviction.
unless the defendant lacked notice of the venue Even ifSSlike DelgadoSShe was well aware of
defect in question.2 the potential defect in venue, he would have
every incentive to forego an improper venue
The problem for Delgado is that the facts claim until after the trial is over. Accordingly,
underlying his claimSSparticularly that the INS Delgado waived any claim to improper venue.
had first discovered him in 1997 in the
Northern DistrictSSwere already known to him III.
at the start of trial. Therefore, his failure to Delgado argues that the district court
object at that time or at any time during trial is improperly departed from the sentencing
decisive. He certainly had enough “notice of guidelines in giving him a 150-month sentence.
a defect of venue” to be able to assert, before A departure from the guidelines is reviewed
trial, the same claim he now raises on appeal. for abuse of discretion. United States v.
Id. Nevels, 160 F.3d 226, 229 (5th Cir. 1998).
“There is no abuse of discretion if the judge
A holding that Delgado did not waive his provides acceptable reasons for departure and
venue claim under these circumstances would the degree of departure is reasonable.” Id.
create severe perverse incentives for criminal at 229-30.
defendants in any case in which there are
doubts over the legitimacy of venue. A The relevant sentencing guideline, U.S.S.G.
defendant would be able to game the system § 4A1.3, allows upward departures if “reliable
and obtain a free second shot at an acquittal by information indicates that the criminal history
waiting for his trial to conclude and then chal- category does not adequately reflect the
seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant
2
See United States v. Sandini, 803 F.2d 123, will commit other crimes.” One such
127 (3d Cir. 1986) (holding that venue objection circumstance is where a defendant “had
not raised before the close of trial is waived unless previously received an extremely light sentence
“the defendant has no notice that a facially proper for a serious offense.” U.S.S.G. § 4A1.3, p.s.
allegation of venue is in fact defective”); United
States v. Melia, 741 F.2d 70, 71 (4th Cir. 1984)
(holding that objections to waiver must be made Delgado had an extensive criminal history.
before trial “when the defect is apparent on the face His offenses include three DWI convictions for
of the indictment”); United States v. Jackson, 482 which he received very light sentences and for
F.2d 1167, 1179 (10th Cir. 1973) (holding that which no criminal history points were as-
“[i]mproper venue may be waived when it is sessed. One of the DWI’s had resulted in an
apparent on the face of the indictment that the case
accident and, in another, Delgado was driving
should be tried elsewhere”); United States v.
Brothman,191 F.2d 70, 72 (2d Cir. 1951) (holding
over one hundred miles per hour. Even
that “[w]here the indictment discloses lack of considering the DWI’s alone, it was certainly
venue, going to trial without objection to venue is not unreasonable for the court to conclude that
a waiver” and “that the same result may follow if their exclusion from the criminal history led to
the defendant is warned of the defect during the an underestimation of “the seriousness of the
trial”), overruled on other grounds, United States defendant’s past criminal conduct.” U.S.S.G.
v. Reed, 773 F.2d 477 (2d Cir. 1985).
3
§ 4A1.3. Under a deferential abuse of commission of an aggravated felony.”
discretion standard, there is no reason to Almendarez-Torres v. United States, 523 U.S.
reverse. 224, 234-35 (1998) (quotation omitted). We
have established that Apprendi did not
Relying on some comments by the district overrule Almendarez-Torres, which therefore
court, Delgado claims that the departure was remains good law. See United States v. Da-
based on a judgment that his offenses “had beit, 231 F.3d 979, 984 (5th Cir. 2000)
not, in the district court’s view, been ade- (holding that Apprendi “expressly declined to
quately punished” rather than on an overrule Almendarez-Torres,” which therefore
assessment of the criminal history. Even if this remains binding), cert. denied, 531 U.S. 1202
characterization of the court’s reasoning is ac- (2001).
curate, there would be no abuse of discretion.
The comment to the relevant guideline notes AFFIRMED.
that courts can take into account the fact that
a defendant had “received what might now be
considered extremely lenient treatment in the
past.” U.S.S.G. § 4A1.3, comment. The
guidelines’ commentary is given controlling
weight if it is not plainly erroneous or
inconsistent with the guidelines. Stinson v.
United States, 508 U.S. 36, 42-45 (1993).
IV.
Delgado argues that, under Apprendi, his
indictment was required to allege that his prior
deportation was the result of a felony
conviction and that, because it did not do so,
his sentence should be reduced accordingly.
As both sides recognize, Delgado’s argument
is barred by existing Supreme Court and Fifth
Circuit precedent.
Apprendi does require that “[o]ther than
the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the
prescribed statutory maximum must be
submitted to the jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at
490. The Court earlier had held, however, in
a § 1326 case similar to this one, that the
government is not “required to prove to the
jury that the defendant was previously de-
ported subsequent to a conviction for
4
DENNIS, Circuit Judge, dissenting:
I respectfully dissent from the majority’s decision finding that Delgado-Nunez waived any claim
to improper venue. Moreover, because venue was improper in the Western District of Texas where
he was tried, I would reverse and vacate the district court’s decision.
“A defendant’s right to be tried in the district in which the crime took place finds its roots in both
the Constitution and federal statutory law.”3 Article III, Section 2, Clause 3, states that “[t]rial shall
be held in the State where the said Crimes shall have been committed.”4 Furthermore, the Sixth
Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to . . . t rial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously ascertained by law.”5
Similarly, Federal Rule of Criminal Procedure 18 provides that “[e]xcept as otherwise permitted by
statute or by these rules, the prosecution shall be had in a district in which the offense was
committed.”6
Waiver of Venue Rights
Despite the constitutional dimension of venue, the standard for finding waiver of venue rights is
more relaxed than the standard for waiver of other constitutional rights.7 That is, a defendant may
waive his right to venue by silence or inaction (i.e., by not asserting his objection prior to trial).8 But,
3
United States v. Carreon-Palacio, 267 F.3d 381, 390 (5th Cir. 2001).
4
U.S. Const. art. III, § 2, cl. 3.
5
U.S. Const. amend. VI.
6
Fed. R. Crim. P. 18.
7
Carreon-Palacio, 267 F.3d at 391.
8
Id.
as this court has noted, this broad waiver rule “does not accurately reflect the law in this circuit.”9
That is, [w]aivers of venue rights by silence are not to be readily inferred”10 and waiver “has an
exceedingly narrow application when a criminal defendant claims the government has failed to prove
proper venue.”11 In fact, “all circuits reaching this question have mitigated the harness of th[e]
[waiver] rule by holding that venue objections are waived only ‘when the indictment . . . clearly
reveals [the venue] defect but the defendant fails to object.’”12 In other words, venue is not waived
by failure to object prior to trial if “the alleged defect in venue was not apparent on the face of the
indictment.”13 “On its face, . . . [an] indictment allege[s] proper venue [if] it allege[s] facts which,
if proven, would . . . sustain[] venue in” the district alleged,14 as “only the indictment may be
9
Id. at 392 n.28
10
Id. at 391. See also United States v. Stratton, 649 F.2d 1066, 1078 n.17 (5th Cir. Unit A. 1981).
11
United States v. Gross, 276 F.2d 816, 819 (2d Cir. 1960).
12
United States v. Sandini, 803 F.2d 123, 127 (3d Cir. 1986) (quoting United States v. Price, 447 F.2d 23,
27 (2d Cir. 1971)) (emphasis added).
13
United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000) (emphasis added). See also
Carreon-Palacio, 267 F.3d at 392-93 (“A defendant indicted by an instrument which lacks sufficient
allegations to establish venue waives any future challenge by failing to object before trial.”) (emphasis added);
2 Charles Alan Wright et al., Federal Practice and Procedure, § 306 (3d ed. 2000) (“If the fact of improper
venue is apparent on the face of the indictment or information, a defendant is held to have waived venue by
failing to object prior to going to trial or pleading guilty. If there is a proper allegation of venue, but the proof
fails to support the allegation, the objection can be raised at the close of all the evidence.”).
14
Ruelas-Arreguin, 219 F.3d at 1060 (emphasis added); United States v. Bohle, 445 F.2d 54, 59 (7th Cir.
1971) (“An indictment alleges proper venue when it alleges facts which, if proven, would sustain venue.”),
overruled on other grounds, United States v. Lawson, 653 F.2d 299 (7th Cir. 1981). Cf. 4 Wayne R. LeFave
et al., Criminal Procedure, § 16.1(h), at 508 (2d ed. 1999) (“[W]here the indictment or information alleged
events or results in the district that would not properly establish venue there even if proven, the defendant must
object pretrial.”).
An example of an indictment defective on its face appears in Bohle, where a defendant was arrested for
aircraft piracy in New York and indicted in Indiana (his last place of residency), despite the statutory venue
requirement that “the trial shall be in the district where the offender . . . is arrested or is first brought,” unless
(continued...)
6
considered in pretrial motions for lack of venue, and [] the allegation must be taken as true.”15
Here the indictment states:
That on or about September 29, 1999, in the Western District of Texas, Defendant, SERGIO
LUIS DELGADO-Nunez, a/k/a Sergio Luis Delgado, an alien, attempted to enter, entered, and
was found in the United States having previously been denied admission, excluded, deported,
and removed therefrom on or about October 31, 1994, and that the Defendant had not
received the consent of the Attorney General of the United States to reapply for admission to
the United States, being voluntarily in the United States unlawfully, in violation of Title 8
United States Code, Section(s) 1326.
On its face, this indictment does not reveal a defect in venue. That is, if the allegations in the
indictment were true, venue would exist in the Western District of Texas. Thus, I would find that
Delgado-Nunez did not waive his objection to venue by failing to raise the issue prior to trial.16
The majority, however, takes a much broader approach to waiver
and seems to hold that any argument with respect to venue must be raised prior to trial. The key
point for the majority is not whether the indictment was facially proper, but whether the defendant
14
(...continued)
“such offender . . . [is] not so arrested or brought into any district, [in which case] an indictment or information
may be filed in the district of the last known residence.” Bohle, 445 F.2d at 57. There the court found the
defendant waived his objection to venue by waiting until the close of the government’s case because “the
indictment alleged facts which, even if proven, would not sustain venue.” Id. at 59.
15
United States v. Mendoza, 219 F.3d 1155, 1156 (9th Cir. 1997).
16
The majority’s statement that Delgado-Nunez failed “to object [prior to trial] or at any time during trial”
does not accurately reflect the facts in the record. During the bench trial, Delgado-Nunez asked for and was
granted permission to file a written Rule 29 motion for acquittal after trial. The written motion, detailing the
objection to venue, was filed before the district judge rendered his verdict. See, e.g., Ruelas-Arreguin, 219 F.3d
at 1059.
7
had any notice of a potential defect in venue, despite a facially proper indictment. Moreover, the
majority concludes that Delgado-Nunez waived any objection to venue by not objecting pre-trial
because he had notice of a potential defect in venue before going to trial. For its rationale, the
majority relies upon broad language in the “helpful and persuasive” case from the Eighth Circuit,
United States v. Black Cloud.17 Far from endorsing the majority’s broad view of waiver, however,
the court in Black Cloud merely articulated lack of notice as one reason why defective indictments
need not be challenged prior to trial, i.e., “when an indictment contains a proper allegation of venue
so that the defendant has no notice of a defect of venue until the government rests its case, the
objection is timely if made at the close of the evidence.”18 The court in Black Cloud (a case involving
the illegal receipt of a firearm by a convicted felon) did not, as the majority does here, find a waiver
of the defendant’s venue rights because he waited to object until the close of the government’s case.
Instead, the court found that the defendant did not waive his challenge that the government had failed
to prove that he received the firearm in the district in North Dakota where the prosecution was
brought because the “indictment specifically charged [the defendant] with having received the firearm
in question in the District of North Dakota.”19 Id. at 271-72.
More importantly, this court, in its most recent pronouncement on the waiver-of-venue issue,
17
590 F.2d 270 (8th Cir. 1979).
18
Id. at 272. United States v. Perez, 280 F.3d 318, 328 (3d Cir. 2002) (“Where an indictment alleges venue
on its face without an obvious defect, defendant has no notice that a facially proper allegation of venue is in
fact defective, and thus there can be no waiver until the close of the government’s case.”).
19
The same is true of at least two of the four other circuit cases cited by the majority. See, e.g., United
States v. Sandini, 803 F.2d 123, 127 (3d Cir. 1986) (The defendant “has not waived his right to object to
venue, because venue in the Western District of Pennsylvania was properly alleged in Counts II and IV of the
indictment. . .”); United States v. Melia, 741 F.2d 70(4th Cir. 1983) (Finding no waiver because “[t]he rule
that the objection must be made before trial applies only when the defect is apparent on the face of the
indictment” and here “[t]here was no defective allegation of venue in Melia’s indictment.”).
8
Carreon-Palacio, expressly did not employ the majority’s broad approach to waiver, despite the
urging of Judge Emilio Garza in a specially concurring opinion.20 In Carreon-Palacio, the defendant,
after transporting marijuana from Texas to North Carolina, was arrested and first indicted in North
Carolina for possession with intent to distribute.21 Although the government dismissed the North
Carolina indictment and re-indicted the defendant in the Western District of Texas, the defendant
waited unt il the government rested to complain of venue.22 In addressing the defendant’s venue
challenge on appeal, this court quoted from Black Cloud: “[W]hen an indictment contains a proper
allegation of venue so that defendant has no notice of a defect of venue until the government rests
its case, the objection is timely if made at the close of the evidence.”23 “[A]pplying the rationale of
Black Cloud,” the court found no waiver despite the defendant’s knowledge that he was arrested in
and first indicted in North Carolina, because “[t]he indictment alleged possession of marijuana in the
Western District of Texas, thus Lopez had no basis to complain of venue until the government
rested.”24 Judge Emilio Garza, in a separate opinion, urged the majority to adopt the same broad
waiver rationale the majority accepts here: “[R]ed flags for venue would have been clear to [the
defendant] prior to trial. [The defendant] was arrested in North Carolina and all three defendants
were initially indicted in North Carolina, suggesting North Carolina as the situs of the charges. The
government then dismissed the indictment and re-indicted the defendant s on essentially the same
20
Carreon-Palacio, 267 F.3d at 390-94.
21
Id. at 385.
22
Id.
23
Id. at 393.
24
Id.
9
charges in the Western District of Texas. This circumstance put [the defendant] on notice of a
potential venue problem despite the government’s proper allegations of venue in the indictment. . .
. I would hold that Lopez waived his objection to venue.”25
Moreover, the majority ignores the closely analogous and equally “helpful and persuasive” Ninth
Circuit case, United States v. Ruelas-Arreguin, in which the court there expressly did not adopt the
broad approach to waiver that the majority advances here.26 In Ruelas-Arreguin, the court addressed
whether a defendant charged with the very same crime at issue here, illegally reentering and being
found in the United St ates without authorization from the attorney general, could be tried in the
Southern District of California, even though he was “found in” and arrested in Arizona.27 As the
defendant objected to venue after the government’s case-in-chief, t he court began its analysis by
examining whether the defendant waived his objection to venue.28 Because the defect in venue was
not apparent on the face of the indictment (i.e., the indictment alleged sufficient facts that, if true,
would have sustained venue in the Southern District of California), the court found that Ruelas-
Arreguin preserved his objection to venue by moving at the close of the government’s case.29
The majority’s approach essentially relieves the government of its burden of proof on venue, an
essential element of the offense.30 For example, here the defendant is charged with a § 1326 crime
25
Id. at 394 (Garza, J., concurring) (emphasis added).
26
219 F.3d 1056 (9th Cir. 2000).
27
Id. at 1059.
28
Id. at 1060.
29
Id.
30
“Venue is an element of the offense, [and] the prosecution always bears the burden of proving that the
(continued...)
10
of illegally reentering and being found in the United States without the consent of the attorney
general. Court s have found a § 1326 crime to be a continuing offense, commencing with illegal
reentry and completed upon being “found” in the United States.31 Because a § 1326 crime is
committed when a defendant illegally reenters the country without authorization and continues until
he is “found” by immigration authorities,32 venue could have been proper anywhere Delgado-Nunez
might have been prior to being “found” by the INS.33 Here, Delgado re-entered the country
in Laredo Texas, the Southern District of Texas in late 1996 or early 1997. According to the INS,
it first discovered him in the Northern District of Texas in September of 1997. State law enforcement
officials moved him to various locations within Louisiana and Texas until 1999, when Agent Niles
encountered him and indicted him in San Antonio, Texas, the Western District of Texas. Delgado-
Nunez’s whereabouts between late 1996 or early 1997 (when he reentered this country) and
September 1997 (when he was first discovered by the INS) are largely unaccounted for. At trial, the
30
(...continued)
trial is in the same district as the crime’s commission.” Carreon-Palacio, 267 F.3d at 390-91. See also United
States v. Winship, 724 F.2d 1116, 1124 (5th Cir. 1984) (“Venue is an element of any offense; the prosecution
always bears the burden of proving that the trial is in the same district as the crime’s commission.”); United
States v. Jones, 174 F.2d 746, 748 (7th Cir. 1949) (“One of the things the Government has the burden of
proving is venue. It is an essential part of the Government’s case. Without it, there can be no conviction.”);
United States v. Toomey, 404 F. Supp. 1377, 1381 (S.D.N.Y. 1975) (“Venue is a necessary part of the
government’s case.”); 4 Wayne R. LeFave et al., Criminal Procedure, § 16.1(g), at 499-500 (2d ed. 1999)
(footnotes omitted)(“In the federal system and the vast majority of states, venue is not simply a prerequisite
that the defendant may choose to challenge pretrial; it is viewed as part of the case that the prosecution must
prove at trial.”).
31
Ruelas-Arreguin, 219 F.3d at 1061.
32
See discussion infra pp. 13-17.
33
Delgado-Nunez essentially argues this point in his brief, “Until trial, Delgado did not know whether the
Government would present evidence that he was found in the Western District before INS agents found him
in 1997.” Reply Br. at 11.
11
government introduced no evidence that during that time Delgado-Nunez was present in the Western
District of Texas,34 as was done in Ruelas-Arreguin.35 Thus, given the government’s facially proper
allegation of venue in the Western District of Texas in the indictment, Delgado-Nunez should not be
penalized for putting the government to its burden of proof.
Improper Venue
Because I find no waiver, I must examine whether venue was, nonetheless, proper in the Western
District of Texas. As explained above, venue is constitutionally and statutorily required where the
crime or offense is committed.36 “The clear language in 8 U.S.C. § 1326(a)(2) provides three
separate occasions upon which a deported alien may commit the offense: 1) when he illegally enters
the United States; 2) when he attempts to illegally enter the United States; or 3) when he is at any
time found in the United States.”37 Section 1329 of Title 8 further provides that “[n]otwithstanding
any other law, such prosecutions or suits may be instituted at any place in the United States at which
the violations may occur or at which the person charged with a violation under section 1325 or 1326
34
In fact, even on appeal, the government raises no argument that Delgado-Nunez was ever in the Western
District of Texas prior to being found in the Northern District in 1997, but instead relies upon its argument
(addressed below) that venue was proper in the Western District because Delgado-Nunez was present there,
after being “found in” the Northern District.
35
Ruelas-Arreguin, 219 F.3d at 1059, 1061 (Although the Ninth Circuit in this case found no waiver, it held
that venue was proper in the Southern District of California, because § 1326 is a continuing offense and the
defendant before his arrest in Arizona, was transported through the Southern District of California.).
36
U.S. Const. amend. VI; Fed. R. Crim. P. 18.
37
United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996).
12
of this title may be apprehended.”38 Also relevant is the venue statute for continuing offenses, which
provides that “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.”39
The government makes no argument and introduced no evidence at trial that Delgado-Nunez
either entered or attempted to ent er the United States in the Western District of Texas The
.
government, instead, contends that Delgado-Nunez was “found in” the Western District of Texas
when Agent Niles encountered him in San Antonio in 1999. The government argues that although
the INS initially identified the Defendant in the Northern District of Texas in 1997, venue is proper
in the Western District of Texas because the offense of illegal reentry is a continuing one, making
venue proper anywhere Delgado-Nunez went or anywhere he was transported until the time of his
arrest in 1999. Also, the government contends venue is proper in the Western District because the
special venue statute for this crime, § 1329, allows for venue anywhere the defendant “may be
apprehended.”
Although this circuit has not addressed when a defendant is “found in” the United States for
purposes of venue, it has previously concluded that the “found in” crime continues until the INS
discovers the defendant, albeit for purposes of the Sentencing Guidelines.40 Moreover, the Ninth
38
8 U.S.C. § 1329.
39
18 U.S.C. § 3237.
40
United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996) (“[W]e hold that a previously
deported alien is ‘found in’ the United States when his physical presence is discovered and noted by the
immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence
typical of law enforcement authorities, can reasonably be attributed to the immigration authorities.”; “[A]
‘found in’ violation is a continuing violation until the date the alien is discovered by immigration authorities.
(continued...)
13
Circuit has recently addressed this very same venue question before us now in United States v.
Hernandez, and similarly concluded that a “found in” crime continues until the defendant is
discovered by the INS.41 In Hernandez, the defendant, who was arrested in Oregon on traffic
violations, was interviewed while in Oregon state prison by an INS agent who determined that the
defendant was illegally in the United States in violation of § 1326.42 After the defendant was
transferred to and prosecuted in Washington for an outstanding state arrest warrant there, another
INS agent again interviewed him and similarly determined that he was illegally in the United States
in violation of § 1326.43 Upon completion of his state sentence, the defendant was indicted by the
INS in the Western District of Washington.44 Concluding that the crime of being “found in” the
United States under § 1326 continues until the defendant is discovered by the INS, the Ninth Circuit
found venue to be improper.45 The court reasoned as follows:
The 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 limitations and Sentencing Guidelines purposes, but also for venue. To hold
40
(...continued)
. . .”); United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999) (“[A] previously deported alien is
‘found in’ the United States when his physical presence is discovered and noted by immigration authorities.”);
United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th Cir. 1999) (A 1326 offense “begins at the time the
defendant illegally reenters the country and does not become complete unless or until the defendant is found
by the INS in the United States.”)
41
189 F.3d 785, 789 (9th Cir. 1999).
42
Id.
43
Id.
44
Id.
45
Id.
14
otherwise would produce unfair and absurd results. For example, venue would become the
"government’s choice" rather than a constitutional guarantee. Under the government’s
scenario, a defendant could be "found" again and again. Or a deported alien who was moved
around the country to various penal institutions could be prosecuted, at the government's
option, in any of the districts where the alien set foot.46
The court in Hernandez also addressed the venue issue under § 1329, which seems to allow
prosecution of the defendant wherever he is apprehended, and under the continuing offense venue
statute, § 3237, which allows prosecution wherever the offense was begun, continued, or completed.
With regard to § 1329, the court concluded that “being ‘apprehended’ is not the crime with which
[the defendant] was charged and the place of apprehension is not necessarily the district where the
crime was committed.”47 The court “decline[d] to read section 1329 to provide for venue in a district
other than where the crime of being ‘found in’ the United States was committed.”48 With respect to
§ 3237, the court rejected the idea that the defendant could be prosecuted wherever he ended up, as
a § 1326 violation ends when the alien is discovered by the INS.49 “[E]ven continuing offenses are
completed at some point.”50 The court concluded, “Neither the Constitution nor section 3237 permits
venue in a location in which the defendant happens to be after the crime was completed, unless the
46
Id. at 791. See also United States v. Herrera-Ordones, 190 F.3d 504, 510 (7th Cir. 1999) (holding that
an alien is “found in” the United States for purposes of venue “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”).
47
Hernandez, 189 F.3d at 791.
48
Id. at 792.
49
Id. at 790.
50
Id. at 791.
15
defendant began, continued, or completed his crime in that venue.”51
I find the rationale of the Ninth Circuit to be both wholly persuasive52 and constitutionally
mandated.53 Here, the evidence showed that Delgado had been deported in 1994; that he reentered
the country in either December 1996 or January 1997 by using an old green card; and that, at Big
Spring, Texas, he gave a statement to an INS agent in September 1997 admitting that he had been
previously removed from the United States by the INS. Thus, the evidence indicates that the INS was
aware or should have been aware with reasonable diligence that Delgado was in the country illegally
in 1997 in Big Spring, Texas -- the Northern District.54 Because the government has introduced no
evidence to show that Delgado-Nunez was in the Western District of Texas at some time prior to
being “found in” the Northern District of Texas in September 1997, I conclude that venue was
improper in the Western District of Texas, and would reverse and vacate the district court’s judgment
to the contrary.
51
Id.
52
The Government contends that Delgado’s case is not like Hernandez, as here the government was not in
continuous custody of the defendant after first discovering him. That is, when Agent Niles encountered
Delgado-Nunez in San Antonio, he had be released on bail and had to be re-arrested by the Bexar County
Sheriff. The Government therefore suggests that § 1329's allowance of venue where the defendant is
apprehended is proper in this case and that venue existed in the Western District because Delgado-Nunez was
not in custody when Niles encountered him in San Antonio. While lack of continuous custody of Delgado-
Nunez is a difference from Hernandez, the fact remains that if a “found in” violation is complete when the INS
knows of the illegality of an alien’s presence in this country, then further transportation of the defendant into
different districts by either the state or federal government is irrelevant for purposes of venue.
53
“Congress lacks power to provide for trial in a district other than that in which the offense was committed.
. . .” 2 Charles Alan Wright, Federal Practice & Procedure, § 302, at 8 (Supp. 2002). Any other
determination would implicate severe Constitutional protections afforded by the Sixth Amendment. See
Hernandez, 189 F.3d at 792.
54
See also Hernandez, 189 F.3d at 791; Bencomo-Castillo, 176 F.3d at 1303-04.
16
United States v. Delgado-Nunez
Court: Court of Appeals for the Fifth Circuit
Date filed: 2002-06-20
Citations: 295 F.3d 494
Copy Citations