### 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 Judge s. HAYNES, Circuit Judge : This case presents a question of first impression for this court and our sister circuits: whether “ use ” of a n immigration document, “ knowing it to be forged, counterfeited, altered, or falsely ma de ” or “ procured by fraud or unlawfully obtained ,” constitutes a “ continuing offense ” for statute of limitations purposes

. 18 U.S.C. § 1546(a). W e 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 Case: 14-50415 Document: 00513068502 Page: 1 Date Filed: 06/05/2015No. 14

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used, possessed, obtained, accepted, and received a counterfeit I

- 551 (“green card”) and counterfeit S ocial S ecurity card in violation of 18 U.S.C. § 1546(a). At rearraignment, the Government pres ented the following factual b asis

. O n 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 th e 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

e mployment 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 o n 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; h owever, he argued that the indictment was not timely because he did not commit a continuing offense. With the consent of the Governmen t, Tavarez entered a conditional plea of guilty in which he reserv ed the right to appeal the statute

- of

- limitations issue. See F ED

. R. C RIM

. P. 11(a)(2) ( allowing a defendant to enter a conditional plea of guilty with the consent of the court and governme nt).

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 fiv e years. 2 Case: 14-50415 Document: 00513068502 Page: 2 Date Filed: 06/05/2015No. 14

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The district court overruled Tavarez’s limitations argument and accept ed his conditional guilty plea

. The district court sentenced Tavarez to a
two

- y ear 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)

. T he offense for which Tava r e z was convi cted does not include a specific statutory limitation s period

. See 18 U.S.C. § 1546. It is thus subject to the general five

- year limitation s period

. See 18 U.S.C. § 3282(a). T he factual basis for Tava r e z’s plea demonstrate s that, at the time he presented a counterfeit green card and counterfeit S ocial S ecurity 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, t he indictment against Tav are z was not returned within five years of February 2, 2009. The Governme nt 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 doc ument, 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 w hen the crime is complete.” Toussie v. United States , 397 U.S. 112, 115 ( 19 70) (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 offense s ” 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, how ever 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 n ecessary to establish the crime have occurred.” United St ates 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 wh ether a crime is a continu ing offense for limitations purposes, i t is useful to first consider the role of a stat ute 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 limitatio n 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 ti me 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 S upreme Court has stat ed 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 C ou rt has thus held that a crime is no t to be construed as a continuing offense unless (1) “ the explicit language of the subs tantive 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. I n 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 con tinuing 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 C f. M ODEL P ENAL C ODE § 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.”). 5 Case: 14-50415 Document: 00513068502 Page: 5 Date Filed: 06/05/2015No. 14

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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 , u nlike other statutes that have been held to proscribe a continuing offense, § 1546 (a) does not include language which would indicate that t he offense involves ongoing con duct. 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. , Unit ed 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)

. C iting 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 a n ongoing employment of the counterfeit or fraudulent ly obta ined 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 State s , 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 ”). W e think it clear that the verb “use , ” in the context of § 1546’s prohibitions relating to counterfeit or fraudulent ly obtained immigration documents, means “[t]o employ for the accomplishment of a purpose.” B LACK ’ S L AW D ICTIONARY 1776 (10th ed. 2014); see M ERRIAM W EBSTER ’ S C OLLEGIATE D ICTIONARY 1301 (10th ed. 1994) (“use implies availing oneself of something as a means or instrument to an end”); Bailey , 516 U.S. a t 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 fraudulent ly obtained immigration document, see id. at 143. Within the context of § 1546, t he word “ utter ” carries a different meaning: “[t] o put or send (a document) into circulation .” B LACK ’ S L AW D ICTIONARY 1781 (10th ed. 2014) . This meaning is specifically employed in reference to the circulation of forged or counterfeit document s 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 worth less instrument with the intent to har m or defraud

. — Also termed uttering a forged instrument ”); M ERRIAM W EBSTER ’ S C OLLEGIATE D ICTIONARY 1302 (10th ed. 1994) (“to circulate (as a counterfeit note) as if legal or genuine”). 5

5 C f. 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 pro mise to pay . . . [commits an offense].” (emphasis added)). 7 Case: 14-50415 Document: 00513068502 Page: 7 Date Filed: 06/05/2015No. 14

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Giv en this understanding of the terms “use” and “utter , ” it becomes evident that a n individual can utter, or put into circulation, a counterfeit or fraudulently obtained immigration document without h im self using or employing the document. This would occur if a person tendered a counte rfeit immigration document intended for use by another. Likewise, a n 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 character istic of a continuing offense is that it involves ongoing perpetration , which produces an ongoing thr eat of harm. See Brazell , 489 F.3d at 668 ; Yashar , 166 F.3d at 875. T he 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 .” T oussie , 397 U.S. at 122. Likewise, other offenses that prohibit an individu al from remaining in an unlawful condition or status have been c onstrued to continue so long as the offender maintains t he unlawful condition or status ; the perpetration of the offense naturally continue s so long as the unlawful condition is maintain ed

. See, e.g. , United States v. Bailey , 444 U.S. 394, 413 (1980) ( holding that escape is a continuing offense because the e scapee 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 o ne’” (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 phys ic ally 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, 34 3

– 4 4 (9th Cir. 1988) ( holding that kidnapping is a continuing offense because the crime , by its na ture, involves unlawful seizure and detention and the perpetration of the offense and harm to the victim continues throughout the duration of the detention). U nlike other crimes that have been construed as continuing offenses, use of a counterfe it 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 a n immigration document that denotes temporal longevity. As explained above, a person uses a counterfeit or fraudulent ly 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 vali d immigration document. Cf. Browder v. United States , 312 U.S. 335, 335 (1941) (holding that “use by an American citizen of a passport obtaine d by false statements to facilitate reentry into the United States is a

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‘use’ within § 2 of the Passport Ti tle of the Act of June 15, 1917 , [ 40 Stat. 217, 227]”). Any of these uses of a counterfeit or fraudulently obtained immigration document naturally o ccur in incident s 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 in ternal quotation marks omitted); see United States v. Dunne , 324 F.3d 1158, 11 65 (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 docum ent to obtain entry into th e country occur s 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 perd ures. C f. 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 Tava r e z committed a continuing offense because the facts demonstrate that he present ed counterfeit document s to his employer, which then set in motion a process by which the document s continually allowed Tavarez to maintain his employment and provide d Tav a r e z with the ongoing benefit s 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. S ee Toussie , 397 U.S. at 115

. S econd, the fact that a particular defendant’s co nduct 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 be nefits 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 singl e, finite incident can produce prolonged benefits to an offen der; 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 t he indictment a gainst Tava r e z was not filed within five yea rs 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 conside ring 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 readi ngs 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 f rom some ambiguous impl ication.” (citation and internal quotation marks omitted)). 11 Case: 14-50415 Document: 00513068502 Page: 11 Date Filed: 06/05/2015