IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50415

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR TAVAREZ-LEVARIO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

This case presents a question of first impression for this court and our 

sister circuits: whether “use” of an immigration document, “knowing it to be 

forged, counterfeited, altered, or falsely made” or “procured by fraud or 

unlawfully obtained,” constitutes a “continuing offense” for statute of 

limitations purposes. 18 U.S.C. § 1546(a). We conclude that it is not. As a 

result, the indictment in this case was filed outside the applicable five-year 

limitations period. We therefore REVERSE the conviction of defendant Victor 

Tavarez-Levario and REMAND for dismissal of the indictment.

I. Background

On March 26, 2013, Victor Tavarez-Levario (“Tavarez”), a citizen of the 

Republic of Mexico, was indicted by a federal grand jury for having knowingly 

United States Court of Appeals

Fifth Circuit

FILED

June 5, 2015

Lyle W. Cayce

Clerk

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used, possessed, obtained, accepted, and received a counterfeit I-551 (“green 

card”) and counterfeit Social Security card in violation of 18 U.S.C. § 1546(a). 

At rearraignment, the Government presented the following factual basis. On 

March 20, 2014, officers pulled over a commercial vehicle driven by Tavarez. 

Tavarez presented a Mexican driver’s license and, upon questioning, admitted 

that he did not have any documents authorizing him to be in the United States 

legally. Immigration authorities contacted the owner of the vehicle, Garland 

Pumping and Roustabout, which revealed that Tavarez had presented a 

counterfeit green card and counterfeit social security card to obtain 

employment on February 2, 2009. 

The Government conceded that, given the factual basis, the offense was 

one for “use” of counterfeit documents under § 1546(a). The Government also

alerted the court to a statute of limitations issue. If the offense was understood 

to have been committed on February 2, 2009, the indictment was not timely 

filed within the five-year limitations period. However, the Government posited 

that “use” of a counterfeit document was a continuing offense such that the 

statute of limitations did not begin to run until Tavarez was no longer 

employed based on the documents.1 Tavarez admitted to the Government’s

factual basis; however, he argued that the indictment was not timely because 

he did not commit a continuing offense. With the consent of the Government, 

Tavarez entered a conditional plea of guilty in which he reserved the right to 

appeal the statute-of-limitations issue. See FED. R. CRIM. P. 11(a)(2) (allowing 

a defendant to enter a conditional plea of guilty with the consent of the court 

and government).

1 The Government conceded that it did not have any proof that Tavarez was in 

possession of the counterfeit documents when he was stopped in March 2014 or that he 

possessed the documents at any time within the prior five years.

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The district court overruled Tavarez’s limitations argument and

accepted his conditional guilty plea. The district court sentenced Tavarez to a 

two-year term of probation. Tavarez timely appealed.

II. Discussion

The only issue before us is whether or not “use” of a counterfeit 

immigration document under § 1546(a) is a continuing offense. As this is a 

purely legal question, we review it de novo. See United States v. Gunera, 479 

F.3d 373, 376 (5th Cir. 2007).

The offense for which Tavarez was convicted does not include a specific 

statutory limitations period. See 18 U.S.C. § 1546. It is thus subject to the

general five-year limitations period. See 18 U.S.C. § 3282(a). The factual basis 

for Tavarez’s plea demonstrates that, at the time he presented a counterfeit 

green card and counterfeit Social Security card to obtain employment with 

Garland Pumping and Roustabout on February 2, 2009, he committed an

offense proscribed by § 1546(a), as all elements of the offense were satisfied. 

See § 1546(a) (“Whoever . . . uses . . . any . . . visa, permit, border crossing card, 

alien registration receipt card, or other document prescribed by statute or 

regulation for entry into or as evidence of authorized stay or employment in 

the United States, knowing it to be forged, counterfeited, altered, or falsely 

made . . . [s]hall be fined under this title or imprisoned . . . .”).2 However, the 

indictment against Tavarez was not returned within five years of February 2, 

2009. The Government argues, and the district court agreed, that the 

indictment was nonetheless timely because use of a counterfeit immigration 

document is a continuing offense: when an individual obtains employment 

based on the presentation of a counterfeit immigration document, the 

2 For the sake of brevity, we refer generally to the documents described in § 1546(a)

as “counterfeit or fraudulently obtained immigration documents,” although we realize that 

the description in the statute is more nuanced. We specifically note that we are not faced 

with, nor do we address, the issue of what documents implicate § 1546(a).

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Government contends that commission of the crime continues during the 

tenure of the individual’s resulting employment.

“[S]tatutes of limitations normally begin to run when the crime is 

complete.” Toussie v. United States, 397 U.S. 112, 115 (1970) (quoting 

Pendergast v. United States, 317 U.S. 412, 418 (1943)) (internal quotation 

marks omitted), superseded by statute, Act of Sept. 28, 1971, Pub. L. No. 92-

129, § 101(a)(31), 85 Stat. 348, 352–53 (codified as amended at 50 U.S.C. app. 

§ 462(d)). However, the “doctrine of continuing offenses” presents a 

qualification to the general operation of this principle. Toussie, 397 U.S. at 

115. “The Supreme Court has defined ‘continuing offense’ to include ‘a 

continuous, unlawful act or series of acts set on foot by a single impulse and 

operated by an unintermittent force, however long a time it may occupy.’” 

United States v. Brazell, 489 F.3d 666, 668 (5th Cir. 2007) (quoting United 

States v. Midstate Horticultural Co., 306 U.S. 161, 166 (1939)). “The hallmark 

of the continuing offense is that it perdures beyond the initial illegal act, and 

that each day brings a renewed threat of the evil Congress sought to prevent 

even after the elements necessary to establish the crime have occurred.” 

United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999) (citation and 

internal quotation marks omitted). Consequently, for a continuing offense, the 

statute of limitations does not begin to run when all elements of the crime are 

first satisfied, but rather when the ongoing commission of the crime comes to 

an end. E.g., United States v. Edelkind, 525 F.3d 388, 393–98 (5th Cir. 2008).

When deciding whether a crime is a continuing offense for limitations 

purposes, it is useful to first consider the role of a statute of limitations:

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. Such a limitation is designed to protect 

individuals from having to defend themselves against charges 

when the basic facts may have become obscured by the passage of 

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time and to minimize the danger of official punishment because of 

acts in the far-distant past. Such a time limit may also have the 

salutary effect of encouraging law enforcement officials promptly 

to investigate suspected criminal activity.

Toussie, 397 U.S. at 114–15.

In light of the important role played by statutes of limitations, the 

Supreme Court has stated that “the doctrine of continuing offenses should be 

applied in only limited circumstances since . . . the tension between the purpose 

of a statute of limitations and the continuing offense doctrine is apparent; the 

latter, for all practical purposes, extends the statute beyond its stated term.” 

Id. at 115 (emphasis added) (citation and internal quotation marks omitted).3 

The Court has thus held that a crime is not to be construed as a continuing

offense unless (1) “the explicit language of the substantive criminal statute 

compels such a conclusion,” or (2) “the nature of the crime involved is such that 

Congress must assuredly have intended that it be treated as a continuing one.” 

Id.4 Because we conclude that the statutory offense at issue in the present 

case meets neither requirement as delineated by the Supreme Court, we hold 

that it is not a continuing offense.

A. The Explicit Language of the Statute

The explicit statutory language does not compel a conclusion that use of 

a counterfeit or fraudulently obtained immigration document is a continuing 

offense. In other instances, Congress has explicitly stated that a crime is a 

continuing offense. E.g., 18 U.S.C. § 3284 (“The concealment of assets of a 

debtor in a case under title 11 shall be deemed to be a continuing offense . . . .”); 

3 Indeed, the statute of limitations applicable in this case provides that it applies 

“[e]xcept as otherwise expressly provided by law.” § 3282(a); see Toussie, 397 U.S. at 115 

(quoting § 3282(a)).

4 Cf. MODEL PENAL CODE § 1.06(4) (“An offense is committed either when every 

element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly 

appears, at the time when the course of conduct or the defendant’s complicity therein is 

terminated.”).

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22 U.S.C. § 618(e) (“Failure to file any such registration statement or 

supplements thereto . . . shall be considered a continuing offense for as long as 

such failure exists . . . .”); 50 U.S.C. app. § 462(d) (superseding Toussie, 397 

U.S. 112, by effectively providing that the start of the five-year limitations 

period on the offense of failing to register for the draft does not begin until the 

day an individual turns twenty-six or registers for the draft). If Congress 

intended for use of a counterfeit or fraudulently obtained immigration 

document under § 1546(a) to constitute a continuing offense, it easily could 

have stated so. See Toussie, 397 U.S. at 120 (noting that congressional silence 

on whether a crime is a continuing offense supports the conclusion that it is 

not). In addition, unlike other statutes that have been held to proscribe a 

continuing offense, § 1546(a) does not include language which would indicate

that the offense involves ongoing conduct. See Toussie, 397 U.S. at 120 

(“Unlike other instances in which this Court has held that a particular statute 

describes a continuing offense, there is no language in this Act that clearly 

contemplates a prolonged course of conduct.”); see, e.g., United States v. Cores,

356 U.S. 405, 408–09 (1958) (holding that punishment of “any alien crewman 

who willfully remains in the United States in excess of the number of days 

allowed” is a continuing offense). 

Citing the principle that each term in a statute should be given effect, 

see TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001), the Government argues that

the term “use” must be construed as involving an ongoing employment of the 

counterfeit or fraudulently obtained document so that the term “utter” in 

§ 1546 does not render it superfluous. We disagree. In other contexts, “the 

word ‘use’ [has posed] some interpretational difficulties because of the different 

meanings attributable to it.” Bailey v. United States, 516 U.S. 137, 143 (1995),

superseded by statute, Act of Nov. 13, 1998, Pub. L. No. 105-386, § 1(a)(1), 112 

Stat. 3469 (codified at 18 U.S.C. § 924(c)(1)(A)). Accordingly, the word “draws 

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meaning from its context” and it is important to consider the statutory scheme 

in which it is found. Id. (interpreting “uses or carries a firearm”). We think it 

clear that the verb “use,” in the context of § 1546’s prohibitions relating to 

counterfeit or fraudulently obtained immigration documents, means “[t]o 

employ for the accomplishment of a purpose.” BLACK’S LAW DICTIONARY 1776 

(10th ed. 2014); see MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 1301 (10th 

ed. 1994) (“use implies availing oneself of something as a means or instrument

to an end”); Bailey, 516 U.S. at 145 (noting that the “ordinary or natural 

meaning” of the word “use” includes “to convert to one’s service, to employ, to 

avail oneself of, and to carry out a purpose or action by means of” (citation and 

internal quotation marks omitted)). Use implies “action and implementation,” 

Bailey, 516 U.S. at 145, especially in the context of § 1546(a), which separately 

proscribes “possessing” a counterfeit or fraudulently obtained immigration 

document, see id. at 143.

Within the context of § 1546, the word “utter” carries a different 

meaning: “[t]o put or send (a document) into circulation.” BLACK’S LAW 

DICTIONARY 1781 (10th ed. 2014). This meaning is specifically employed in 

reference to the circulation of forged or counterfeit documents as if they were 

genuine, id.—the precise context contemplated by § 1546(a), which prohibits 

both the production of counterfeit documents and subsequent acts involving 

counterfeit documents. See also id. at 1781 (defining “uttering” as “[t]he crime 

of presenting a false or worthless instrument with the intent to harm or 

defraud.—Also termed uttering a forged instrument”); MERRIAM WEBSTER’S 

COLLEGIATE DICTIONARY 1302 (10th ed. 1994) (“to circulate (as a counterfeit

note) as if legal or genuine”).5 

5 Cf. 18 U.S.C. § 479 (“Whoever, within the United States, knowingly and with intent 

to defraud, utters, passes, or puts off, in payment or negotiation, any false, forged, or 

counterfeited bond, certificate, obligation, security, treasury note, bill, or promise to pay . . . 

[commits an offense].” (emphasis added)).

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Given this understanding of the terms “use” and “utter,” it becomes 

evident that an individual can utter, or put into circulation, a counterfeit or 

fraudulently obtained immigration document without himself using or 

employing the document. This would occur if a person tendered a counterfeit 

immigration document intended for use by another. Likewise, an individual

can use a counterfeit or fraudulently obtained immigration document without 

himself uttering, or putting into circulation, the document. The two terms thus 

have distinct meanings within § 1546 without any need to construe the term 

“use” as involving ongoing action as the Government suggests. Accordingly, 

we hold that the “explicit language” of § 1546 does not compel the conclusion 

that using a counterfeit or fraudulently obtained immigration document is a 

continuing offense. Toussie, 397 U.S. at 115.

B. The Nature of the Crime Involved

The defining characteristic of a continuing offense is that it involves 

ongoing perpetration, which produces an ongoing threat of harm. See Brazell, 

489 F.3d at 668; Yashar, 166 F.3d at 875. The prototypical continuing offense 

is conspiracy, which “continues as long as the conspirators engage in overt acts 

in furtherance of their plot,” and “each day’s acts bring a renewed threat of the 

substantive evil Congress sought to prevent.” Toussie, 397 U.S. at 122. 

Likewise, other offenses that prohibit an individual from remaining in an 

unlawful condition or status have been construed to continue so long as the 

offender maintains the unlawful condition or status; the perpetration of the 

offense naturally continues so long as the unlawful condition is maintained.

See, e.g., United States v. Bailey, 444 U.S. 394, 413 (1980) (holding that escape 

is a continuing offense because the escapee can be held liable for failure to 

return to custody and “[g]iven the continuing threat to society posed by an 

escaped prisoner, ‘the nature of the crime involved is such that Congress must 

assuredly have intended that it be treated as a continuing one’” (quoting

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Toussie, 397 U.S. at 115)); Cores, 356 U.S. at 408–09 (holding that punishment 

of “any alien crewman who willfully remains in the United States in excess of 

the number of days allowed” is a continuing offense because the crewman 

continues to violate the statute “until he physically leaves the United States”); 

United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996) (“Where 

a deported alien enters the United States and remains here with the 

knowledge that his entry is illegal, his remaining here until he is ‘found’ is a 

continuing offense . . . .”); United States v. Gray, 876 F.2d 1411, 1419 (9th Cir. 

1989) (holding that failure to appear for sentencing is a continuing offense 

because a convicted criminal has a continuing obligation to face sentencing and 

presents an ongoing threat to the integrity and authority of the court so long 

as he has not appeared); United States v. Garcia, 854 F.2d 340, 343–44 (9th 

Cir. 1988) (holding that kidnapping is a continuing offense because the crime, 

by its nature, involves unlawful seizure and detention and the perpetration of 

the offense and harm to the victim continues throughout the duration of the 

detention).

Unlike other crimes that have been construed as continuing offenses, use 

of a counterfeit or fraudulently obtained immigration document does not by its 

nature involve ongoing perpetration that produces an ongoing threat of harm. 

There is nothing about the “use” of an immigration document that denotes 

temporal longevity. As explained above, a person uses a counterfeit or 

fraudulently obtained immigration document when he employs the document 

for a purpose. This may take the form of employing the counterfeit or 

fraudulently obtained document to obtain employment, gain entry into the 

country, or obtain other rights and privileges that normally proceed from the 

employment of a valid immigration document. Cf. Browder v. United States, 

312 U.S. 335, 335 (1941) (holding that “use by an American citizen of a passport 

obtained by false statements to facilitate reentry into the United States is a 

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‘use’ within § 2 of the Passport Title of the Act of June 15, 1917, [40 Stat. 217, 

227]”). Any of these uses of a counterfeit or fraudulently obtained immigration 

document naturally occur in incidents of finite duration; they do not by nature 

involve “a continuous, unlawful act or series of acts.” Brazell, 489 F.3d at 668

(citation and internal quotation marks omitted); see United States v. Dunne, 

324 F.3d 1158, 1165 (10th Cir. 2003) (holding that a statute which made it 

illegal for a person to knowingly “use[] any false writing or document” did not 

involve a continuing offense because it “contemplate[d] a single act” (quoting 

18 U.S.C. § 1001)). For example, using a fraudulent document to obtain entry 

into the country occurs as a discrete incident, as might the attainment of 

employment or other benefits. This is in stark contrast to traditional 

continuing offenses, such as conspiracy, that by their essence prohibit conduct 

that perdures. Cf. Toussie, 397 U.S. at 122 (contrasting the ongoing nature of 

conspiracy and the instantaneous event of registering for the draft). 

The Government argues, however, that Tavarez committed a continuing 

offense because the facts demonstrate that he presented counterfeit documents

to his employer, which then set in motion a process by which the documents

continually allowed Tavarez to maintain his employment and provided

Tavarez with the ongoing benefits of employment. This argument suffers from 

two flaws.

First, under Toussie, the analysis of whether a crime constitutes a 

continuing offense involves examining the offense itself, not the defendant’s 

particular conduct. See Toussie, 397 U.S. at 115. Second, the fact that a 

particular defendant’s conduct provided long-term benefits to that defendant 

does not mean that his offense is a continuing one. See Dunne, 324 F.3d at 

1165 (an offense was not a continuing one simple because the defendant 

“committed a crime which had continuing effects after its completion”); United 

States v. Hare, 618 F.2d 1085, 1086–87 (4th Cir. 1980) (rejecting the argument 

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that improper receipt of anything of value for performance of an official act was 

a continuing offense where the defendant received a loan that provided benefits 

over a prolonged period). Instead, the nature of the offense itself must be such 

that it inherently involves criminal activity of an ongoing or continuous 

character. See Toussie, 397 U.S. at 115, 122. Even a crime that naturally 

occurs in a single, finite incident can produce prolonged benefits to an offender; 

this does not mean that the statute of limitations refrains from running until 

all benefits of the criminal act dissipate. E.g., Dunne, 324 F.3d at 1165; United 

States v. Payne, 978 F.2d 1177, 1180–81 (10th Cir. 1992); Hare, 618 F.2d at 

1086–87. Thus, we conclude that the “nature” of this offense is not “such that 

Congress must assuredly have intended that it be treated as a continuing one.” 

Toussie, 397 U.S. at 115.6

As the indictment against Tavarez was not filed within five years of the 

commission of the offense, the indictment should have been dismissed. See 

§ 3282(a). Accordingly we REVERSE the conviction and REMAND with 

instructions to dismiss the indictment.

6 We need not resort to considering the rule of lenity because we conclude that 

§ 1546(a) is not ambiguous as to whether “use” of a counterfeit or fraudulently obtained 

immigration document is a continuing offense. See Muscarello v. United States, 524 U.S. 125, 

138 (1998). However, assuming arguendo that § 1546(a) is ambiguous, the rule of lenity 

supports our holding. See Toussie, 397 U.S. at 122 (“[W]hen choice has to be made between 

two readings of what conduct Congress has made a crime, it is appropriate, before we choose 

the harsher alternative, to require that Congress should have spoken in language that is 

clear and definite. We should not derive criminal outlawry from some ambiguous 

implication.” (citation and internal quotation marks omitted)).

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