in this case the government charge that mr i don't breach was found in cumberland county pennsylvania but it brought this case in the eastern district of virginia because the violation of the statu occurred in pennsylvania the district court erred in denying the motion to dismiss in a criminal case then you must be you know i'm the st stop in determining the appropriate venue that means that venue for the charged offense is the middle district of pennsylvania not the government in other words the crime charged here is not presence within the united states  where the offense occurred is where the elements of the crime were committed right and one of the elements is found and the word found is been interpreted by most courts to be a continuing notion but maybe that's not the best word but it means and countered identified and recognized as illegal that's what judge sykes nicely said in the th circuit but we have also repeated it in a little different form and he was st encountered in virginia and then he was identified in pennsylvania and recognized as an illegal alien in pennsylvania so it seems to me the act of finding involve saying in a bar lation occurs when the elements are satisfied of the crime right all all of the elements let's grab all of the elements one of which is to be found in the united states that's right that's when the violation of persons with a violation perp once the person is apprehended or is identified by law enforcement both as being a person and being too legal and that's when the statute of limitations starts to run but it doesn't meet the defense is not a continued offense that it was beginning to set the point of entry and ends at the point of apprehension and actually can be apprehension plus so with respect to admirers the the statute the found in statute is not violated until the defendant is found that is and if an individual comes into the united states without authorization and they were previously deported the found in portion of the statute has not been violated and let me give you an example so let's say an individual has a friend pretty good i thought if i could  just provide my family all right of a person who has been previously deported they come back into the country and they live for ten years without being found in this country in vermont and then they decide they'd like to move to canada and then they attempt to leave the country they get stopped by canadian authorities they're never found in the united states until the canadians turn them back and bring them to the u s border in that case there is no found in violation and the referring here to any place in the united states at which the violation may occur or where the person is actually handed so it seems to me that this the statutory language is it's very  very precise any place in the united states or either the violation occurs or the persons apprehended so it could be any one of a number of places once the illegal entry has occurred c opinion that says it's unconstitutional and here's why if an individual comes into the country and tours the country on lawfully and then and the government knows that they learn that this person is here  identify them and then they're out recommended in another district the offense the entry offense occurred at the place of entry and even though the stock shoot says that the person can be prosecuted at the place of apprehension if that doesn't relate to the commission crime that it violates the constitution not part of the been you statute is not at issue here the only question is whether the defendant can be prosecuted in the eastern district of virginia when they were not found w ration i'm sorry what is the rationale behind your argument it seems to me that there's a lack of logic in the fact that a person can only be arrested i mean can only be prosecuted where they are found or act and apprehended according to you because if a person moves around in the united states in five different places just the fortuitous circumstance of alternately being apprehended makes a difference when they're in the country illegally the whole time know it just to be clear though there's usually only one place that a person is found and it means when federal immigration authorities identify the person and  recognize their presence here so usually even if a person moves around to five different places it is the place where federal immigration authorities find them and recognize the presence here as being unlawful that is the sole place where they can be prosecuted and let me explain the is deportation so for example if you look at the elements of the offense potentially and you consider that venue is anywhere with the elements occur then the government could conceivably transfer every illegal reentry defendant to the border where that individual supportive and they know in every case where a defendant has been deported because they have to get that in the context of the prosecution and the problem in the context of venue is that it allows the government to decide where an individual may be prosecuted and immigration is one context where there is a vast difference between the way that the government prosecutes one thousand three hundred and twenty six dollars prosecution throughout the country and some places there are fast track limitations no i mean that is unconstitutional as the th circuit an is the o l speedups that and the reason is for example if someone is prosecuted for entering the country after a prior deportation in texas but the person is entered the country it can't be done somewhere else in the country if that's what they are charged with the same logic applies to a found in violation if someone is found in the country that is where they have to be prosecuted for one thousand three hundred and twenty six so it's not a continu i don't think it is i don't think the court needs to reach that i think we have to if you know you want to rule the way you want to rule we have to say that this court was wrong and barnett but it's a deportee person who succeeds in reentering the country without published them so therefore isn't binding precedent let me explain why i think it's wrong the reason is this that one thousand three hundred and twenty nine doesn't require the court to decide whether this is a continuing offense or not it's simply require the court to determine the venue is limited to the place of the violation in this case the violation the found in violation charge and indictment this pennsylvania if you were great i think they all think judge mars question is the venue determines is determined by where the offense  occurred until the defendant is found so an offense may begin it may have a middle and it may happen and but a violation only happens when the elements are satisfied and so that's that's why i'm i'm not trying to play semantic games with you but i think there is a difference between when a violation of a statute occurs and women offense may occur because an offense to the extent that a part of the fence occurs in one place and a part of the offense occurs in another place it's different than a violation of the the united states is the president has been here on lawfully they're charged with being found in the country just because they were present in the case that i'm referring to the person left to the united states and then was only found at the border when the canadians turn them back that is not a violation of the found in portion of the statute they cannot be prosecuted based upon being found in the country because they work their mere presence was not enough and so it s important to keep in mind that if someone enters the country on lawfully that is where the violation occurs of entry and so any individual who enters the country unlawfully out or previously being deported has to be prosecuted in that place of entry like that offense of entry continues there is no continuation after after they have entered if the government wants to prosecute them for entering the country after a prior deportation they were limited to the place of entry and the  apprehended by state authorities in the eastern district of north carolina they say they received a a six year sentence and then they were ultimately transferred to a prison in the western district of north carolina at that point lodged although under duress different names and this court said no the found in violation occurred when the federal immigration authorities identified that person their identity and their illegal present problems and that occurred in the western district the case the most recent case that we cited him as from the middle district of florida the exact same circumstance and the government made the exact same arguments this is a continuing a balance it's subject to the general venue provision and three thousand two hundred and thirty seven dollars and the district court said it doesn't says that prosecution must occur in the place where the violation occurs of course it also says we're apprehended but again we're not dealing with that portion of the specific event but a continuing violation occurs in all those district can't but a continuing violation if i can answer only matters for purposes of the general venue statute thirty to thirty seven if we are right that venue is determined by the specific venue provision and not the general one it doesn't matter whether it's you look at section one thousand three hundred and twenty nine and it refers to the prosecution may be brought at any place in the united states in which the violation me her as opposed to place in the united states it seems to me did perhaps your reading of the statute would would be taken care of if the language had been the place in the united states but congress chose to use any doesn't that make a difference if it's clear but there are three places that the statute says that people can be prosecuted but is where they attempt to enter where they are and where they are found and so conceivably if the government knows where a person has entered  her prior to protection and they know where a person is found the government can choose which of ben you like if they're different so they could choose to prosecute the person being found in where they're found or where that entered i don't think many way we're diminishes our argument that venue in this case is determined by one thousand three hundred and twenty nine in this case they have charged that he was found and in this case the indictment says he was found not in the eastern district of virginia but in the middle district of pennsylvania paula thank you thank you will hear from this call m please the court good afternoon i want to start off where we left off a moment ago talking about this circuit opinion in early bay rio but i think it needs clarification on the meaning of the term found now the meaning of the term found though it is only important if the court is inclined to agree with the defendant's proposition that the wording violation restricts the venue to where a defendant is bound with that which is which is not the government's position here but regardless i want to did not hold that venue was present only where the senate is found and did not consider whether then you would be proper anywhere else later on in that exact same opinion or circuit clarified the meaning of the term found when it cited united states versus board and which is a th circuit skate and it said there to be found in the united states means to be present in the united states without permission after deportation it continues that the immigration agencies discovery of the alien is not an element of the but i believe the language there in the understanding of discourse prior ruling helps clarify the meaning of the term plan around and that's exactly what country now briefly to touch on another point that was made about the term apprehension i believe it was said that this is not at issue here there are a number of ways that this court can find venue proper in the eastern district of virginia in cited i believe state that this may be unconstitutional to the extent that they provide for venue where the violation or the offense was not committed and that is simply not the case here the defendant was apprehended in virginia t extent that that is where federal officials st took him into custody and similarly the offense occurred in prison for genya because of his presence there prior to his arrest in pennsylvania now after talking on the point do want to talk about a couple really takeaways from the many ask you on that question do you read found to include the notion that there has to be an apprehension or can a person be found in the united states but not apprehended in other words let's say the local sheriff calls the immigration people and said we had a guy staying here at the motel who had been deported this case was based on the sheriff's report that a b c checked out of the hotel and he was a person who had violated one thousand three hundred and twenty six but he left this morning in a car going west to montana and the immigration officers are told about pot this is in pennsylvania and he's told about that is he found a point or is he found when they finally apprehend them on the way to montana it and the government now turning to kind of the extensions of these rules that are being articulated st off there's a bit of a peculiarity that venue could be at issue in a case like that the supreme court has expanded on th values and the public policy considerations that are protected by constitutional and statutory venue protection then chief among those is that a defendant not be brought to a far away place for prosecution of a crime in court as the supreme court said very this that the provision for trial in the city of the crime is a safeguard against the unfairness and hardship involved when accused in prosecuted in a remote place provided that the language permits the act in question should be given that including this one a defendant be taken away from where he is the most majority of the time at the end being committed to a faraway place out of the construction which the government supports that it is a continuing offense is really on the other hand a defendant friendly rule and there for reasons i'll point to st off is that it would allow prosecution in the district where the defendant is residing during the commission of the offense second it provides a defendant with more limited criminal exposure so thinking of the offense as beginning at in a defendant's rianne tree and completing some time whether it be is the discovery by federal immigration officials or later is simply one offense however if you think of it as a point in time a fine it exposes a defendant to multiple units a prosecution including the entry of perhaps an attempted entry and however many times he may sound at least in that defendant argument recognized and counter discovered identified by a local sheriff zimbabwe to the statute yes exactly your honor i meant to promise what i just said was in the defendant's argument found by immigration officials but in order that would be it would be found on anywhere by anyone and i would agree that he violates the statue to be found by a local terre now rd on that on the same points regardless of the multiple permissive venue's that may be allowable under that rule the defendant will always have the ability to move to transfer venue or convenience and that simply did not happen here so there's a number of safeguards here that the perfect defendants interest in these prosecution i'll focus for a bit on on the continuing offenses and what those are but i think that is important to the decision here at a couple of your honor's have noted and it makes the venue determination quite easy congress created a continuing or moped district court consult the specific venue statute if there is one and the nature of the crime alleged and the location of the act or act constituting it and there is a circuit at that in court it goes on to say if congress is found to have created a continuing effect the locality of the crime challenged then over the whole area through which the force of the path of the offender operate now when we look at the the actually at issue here whether this is a continuing offense has found in the affirmative and this interpretation gives meaning to the statutory language that we pointed out that says a defendant who enters attempts to enter or that any time found in the united states reals as i said earlier favorably cited a decision of one of these courts gordon in saying that the defendant is to be found means to be present and that's in line with published opinions sorry the venue and any place where a violation occurs and the meaning of the violation the word violation or violation of her here and really be read in context against the backdrop of law finding that in the legal  one and this circuit in barnett specifically said that the violation occurred anywhere that the defendant is so that's the st the nd would be the point apprehended which i believe i've already touched on but i'm happy to going to  doctrine to describe the st is simply the the general statement that venue for a continuing offense is proper and anywhere that the defense begins continues or complete here it is not in dispute th defendant was in virginia prior to his arrest in pennsylvania and that is simply where the offense continued defense began where the defendant entered and it completed at some point later which is at the earliest when he was in pennsylvania and britain wiser works in favor of that it in that case i'll briefly describe the facts and but in a limited detail it involved a sexual assault on an airplane that was in interstate commerce and this provision of thirty to thirty seven not necessary to find precisely where the plane was where the occurred because it was covered by the statute and that allowed for prosecution anywhere that this means of transportation interstate commerce moves anywhere from you know the takeoff of the plane landing and that's exactly the case in cases involving importation as well and lugard in the whether this applies in the st place i want to know the statute in brit wise or didn't use the word involving means statutes apply and any of them can be let read either alone or in tandem to allow for a venue here the last thing i'll note is simply be  moving outside of the venue contacts were found has appeared a lot in the context of the statute of limitations and what's happened there is there is apparent discomfort with the court the perpetual liability for a defendant i think escape the return of that person to to prison if it's an escape from prison and then looking for that triggering event court here have have landed in a number of circuits on the discovery by federal immigration officials and it's the government contention that's that's really the only relevance of the discovery for this offense it's not an element of the offense and it's not relevant to that new so the what has happened is a number of the circuits in dictating what the triggering event for statute of limitations is as stated that it is where they are found by federal immigration officials so there is some confusion or some imprecision in the opinion that use this term found only in the context referring to discovery both drafted permissive really they both use the term then you may be based in such and such a district neither of them are talented in the word shout or anything that shows that they are  exclusive in nature so you know absent confliction between the statute which which there isn't really either can apply so the court's decision can really base its opinion on on either statute can be found even by a local sheriff completely apart from whether federal immigration authorities find or know that an individual is here on walkway and not to directly contrary to what the court held in a rebate rio's the decision well it is it enough in a context but it seems to me there's nothing in the statute that says the federal crime element found has to be found by any bought particular person i would think that if a private citizen found a person in the united states who had been deported and reported it that person is found at that point there is a violation occurs where the person is found it didn't say found by federal officials and i don't know how you how you can add that element when congress didn't put it there well that's the holding of a review rios and i understand what a writ that case says and it's a discussion about that because the defendants that that venue should have been an eastern district with caroline and what the court held you know read from it it's on page three hundred and fifty five i'm familiar with i'm familiar with that mr cannon's my question to you is forget that because that can be answered by what the th circuit did judge sykes said the word found includes three components one is encounter the nd is identification and rd is recognition of the illegal status once those three things are satisfied you're found now if the sheriff and counter somebody and it's identified it seems to me the only question is whether when it's st recognize it is a legal status if that's recognized that deportation and being found without lawful authority neither of those things based on this indictment occurred in virginia ok if i get that last minute the government says there is no qualification on the ben we'll take these all in consideration we normally come down at this point and shake hands with counsel that's been our longstanding tradition it's a it's the symbol of four circuit and of our views of the relationship between the bench and the bar and we're so sorry we