                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-2802
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellant,
                                v.

ADEWUNMI ARE,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
            No. 05 CR 708—James B. Moran, Judge.
                         ____________
  ARGUED NOVEMBER 1, 2006—DECIDED AUGUST 9, 2007
                  ____________


 Before KANNE, EVANS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. The sole issue in this appeal is
the timeliness of an indictment for the crime of being
“found in” the United States after deportation. See 8
U.S.C. § 1326(a)(2). Adewunmi Are, a Nigerian national,
was convicted in 1995 of drug smuggling and in 1996
was deported. He attempted an illegal reentry in May 1998
but was caught at the airport and immediately sent
back to Nigeria. He tried again in September 1998 and
this time succeeded. Because he slipped into the country
undetected, however, immigration authorities did not
discover his presence until sometime after his 2003 arrest
by Chicago police on an unrelated offense. Although he
gave a false name at the time of his arrest and immedi-
2                                              No. 06-2802

ately posted bail, fingerprint processing and further
investigation eventually confirmed his true identity and
location, and in June 2005 he was arrested on the immi-
gration violation.
  The crime of illegal reentry under 8 U.S.C. § 1326(a)(2)
is committed when a previously deported, removed, or
excluded alien “enters, attempts to enter, or is at any time
found in, the United States” without the Attorney Gen-
eral’s permission. On September 1, 2005, Are was indicted
for committing the “found in” version of this offense.
Applying the five-year limitations period imposed by
18 U.S.C. § 3282(a), the district court dismissed the
indictment as untimely.
   The court held the government should have known of
Are’s illegal presence in 1998 or 1999 because immigration
authorities had opened an investigative file in October
1998 based on Are’s unsuccessful reentry attempt earlier
that year; the authorities also had a tip from a confiden-
tial informant that Are was living in Chicago. This estab-
lished constructive knowledge of Are’s illegal presence,
the court held, and that was enough to start the running
of the statute of limitations. The judge believed the
government should have investigated more diligently. The
government appealed, arguing that only actual—not con-
structive—discovery by immigration authorities starts
the running of the limitations period.
   We reverse. The “found in” variation of the § 1326(a)(2)
crime is a continuing offense; the statute of limitations
generally does not begin to run for continuing offenses
until the illegal conduct is terminated. The statute makes
it a crime to be “at any time found in” the United States
following deportation, permitting prosecution of deportees
who evade detection at the border and remain present here
undetected, even for long periods of time. A “constructive
knowledge” interpretation—one that starts the statute of
No. 06-2802                                             3

limitations clock when the government “should have
found” the deportee—is inconsistent with the straight-
forward text and obvious purpose of the statute. Immigra-
tion authorities did not actually discover Are’s presence,
identity, and status as a prior deportee until sometime
in late 2003 or 2004, and his illegal presence continued
until his arrest in June 2005. Whether measured from the
date of his actual “discovery” by immigration authorities
or the date of his arrest, the September 1, 2005 indict-
ment was timely.


                    I. Background
  The former Immigration and Naturalization Service
(“INS”) deported Are to his native Nigeria in 1996 follow-
ing his conviction for conspiracy to import heroin in the
United States District Court for the Eastern District of
New York. Are tried to reenter the United States at New
York’s Kennedy Airport on May 9, 1998, but was detained
by immigration authorities and removed to Nigeria the
next day. On September 4, 1998, however, he slipped
into the United States by stealth. He moved in with his
wife in Chicago under an assumed name and remained
undetected by immigration authorities until sometime in
late 2003 or 2004, when fingerprints taken during his
September 23, 2003 arrest by Chicago police betrayed his
presence to the Department of Homeland Security
(“DHS”), the successor agency to the INS. On December
10, 2004, a Deputy United States Marshal completed
a report that traced Are to an address in the Chicago
suburbs; he was arrested on June 20, 2005. On
September 1, 2005, a grand jury indicted him for the
offense of being “found in” the United States after his
1996 deportation in violation of 8 U.S.C. § 1326(a)(2).
 The district court dismissed the indictment as untimely
under the five-year limitations period imposed by 18
4                                               No. 06-2802

U.S.C. § 3282. Citing this court’s opinion in United States
v. Herrera-Ordones, 190 F.3d 504 (7th Cir. 1999), the
court applied a “constructive knowledge standard” to
determine when the statute of limitations began to run.
Although the indictment came less than two years after
DHS learned from the fingerprint evidence that Are was
in Chicago, the court concluded that DHS had construc-
tive knowledge of Are’s illegal presence in this country
prior to September 1, 2000 (five years before the date of
the indictment). The judge believed immigration authori-
ties should have known of Are’s presence well before that
date based in part on an investigative file the INS opened
on October 15, 1998.
  It is not entirely clear what prompted the opening of
this investigation; the file contains only a cryptic “Investi-
gation Preliminary Worksheet” listing Are’s name, a
location of “CHI,” and a checked box indicating the case
was being “placed in progress.” There is a separate docu-
ment in the record indicating that on September 25, 1997,
the INS received a tip from a confidential informant
that Are was living in Chicago with his wife, Vivian
Adelagun. In the district court, the government suggested
the October 1998 investigative file was opened in response
to the 1997 tip; in its brief in this court, however, the
government maintains the file was opened in response
to Are’s failed reentry attempt in May 1998.
  The district court also relied on two documents filed in
1998 in Are’s drug case in the Eastern District of New
York. On December 21, 1998, the probation office for the
Eastern District of New York filed a Violation of Super-
vised Release form in Are’s case. On December 29, 1998,
an arrest warrant for the supervised release violation
was issued. The violation report and warrant list a last
known address for Are on Sheridan Road in Chicago (the
same address listed in his presentence report in the
underlying drug case), but there is no detail about the
No. 06-2802                                                   5

nature of the violation; the government suggests the
report and warrant were generated in response to Are’s
May 1998 failed reentry attempt.
  Although the district court specifically declined to
identify “a concrete discovery date,” the court concluded
that the foregoing evidence established that at some point
prior to September 1, 2000, “the government had construc-
tive knowledge of defendant’s physical presence, identity
as an illegal alien, and status as having a prior deporta-
tion.” The court held that “[b]ecause a reasonable investi-
gation would have discovered defendant prior to Septem-
ber 1, 2000, the indictment was filed five years after the
section 1326 offense was committed, and the prosecution
is therefore time-barred.”


                      II. Discussion
  The statute of limitations for noncapital offenses pro-
vides that “no person shall be prosecuted, tried, or pun-
ished for any offense . . . unless the indictment is found . . .
within five years next after such offense shall have been
committed.” 18 U.S.C. 3282(a) (2000). Ordinarily, an
offense is committed when it is completed, that is, when
each element has occurred. Toussie v. United States, 397
U.S. 112, 115 (1970); United States v. Yashar, 166 F.3d
873, 875 (7th Cir. 1999). The issue before us in this appeal
is whether Are’s charged offense—being “found in” the
United States in violation of 8 U.S.C. § 1326(a)(2)—was
committed within five years of September 1, 2005, the
date of the indictment.
  Both sides agree DHS did not actually discover Are in
Chicago until late 2003 or 2004, well within the limitations
period. But Are believes the limitations period was trig-
gered in late 1998 because DHS should have discovered
his illegal presence at that time. The government
6                                                   No. 06-2802

counters that it had insufficient information to know Are
was in Chicago in late 1998. Alternatively, the govern-
ment contends that for the purposes of starting the
limitations period, the offense of being “found in” the
United States is completed only upon actual discovery of
the deportee’s physical presence by DHS. Constructive
knowledge—the date on which the government “should
have known” of the deportee’s presence here—should not
start the five-year clock.1 We review de novo whether the
limitations period has run, giving deference to necessary
factual determinations by the district court. United States
v. Barnes, 230 F.3d 311, 314 (7th Cir. 2000).
  This circuit has yet to squarely address the issue of
when the statute of limitations for a § 1326(a)(2) “found in”
offense begins to run. See United States v. Rodriguez-
Rodriguez, 453 F.3d 458, 461 (7th Cir. 2006) (declining to
consider whether a “one clock” rule should govern the
running of the limitations period in “found in” cases). We


1
  The government believes it failed to raise this argument below
and asks us to review the district court’s application of a con-
structive knowledge standard for plain error. FED. R. CRIM. P.
52(b). The government concedes too much. Before the district
court, the government took issue with Are’s argument that it
“should have known” of Are’s illegal presence despite having
no direct contact with him. In its response to Are’s motion to
dismiss, the government explained that “absent official contact
with the government, however, there is simply no basis from
which to establish that the government had knowledge of an
alien’s illegal entry.” This preserved the issue for appeal be-
cause it alerted the district court and Are of the government’s
position that the immigration agency’s actual knowledge—not
constructive knowledge—of an alien’s illegal presence is re-
quired to start the limitations period. Accordingly, our review of
the district court’s application of the constructive knowledge
standard is plenary. See United States v. Schlifer, 403 F.3d 849,
853-54 (7th Cir. 2005).
No. 06-2802                                                 7

have, however, characterized the “found in” offense under
§ 1326(a)(2) as a continuing offense, and this necessarily
defeats Are’s argument (adopted by the district court) that
the limitations period begins to run when the government
“should have found” him. In United States v. Lopez-Flores,
275 F.3d 661, 663 (7th Cir. 2001), we held that “in the case
of surreptitious reentry . . . the ‘found in’ offense is first
committed at the time of the reentry and continues to the
time when [the defendant] is arrested for the offense.”
Treating the “found in” version of § 1326(a)(2) as a contin-
uing offense “is a logical consequence of its language,”
which punishes any deportee who “enters, attempts to
enter, or is at any time found in, the United States.”
Rodriguez-Rodriguez, 453 F.3d at 460 (emphasis added).
“The point of using a word such as ‘found’ in § 1326(a)(2)
is to avoid any need to prove where and when the alien
entered; the offense follows the alien.” Id.
   Thus, we have held that for purposes of liability and
venue, the “found in” crime does not occur “only at the
instant of its detection.” Id. “The crime is being in the
United States and is not limited to the instant at which a
federal agent lays hands on the person and a light bulb
in the agent’s head illuminates the mental sign ‘This guy’s
an illegal alien.’ ” Id. Lopez-Flores held that the phrase
“ ‘found in’ must have the force of ‘present in’ rather than
‘discovered by the INS to be in.’ ” 275 F.3d at 663. Under-
stood as a continuing offense, the date on which immigra-
tion authorities discover the violation “has no significance
so far as culpability is concerned.” Id.
  We reached the same conclusion on the question of venue
in § 1326 prosecutions in Rodriguez-Rodriguez. The
applicable venue statute states that a prosecution may be
brought “at any place in the United States at which the
violation may occur or at which the person charged . . .
may be apprehended.” 8 U.S.C. § 1329. We said in
8                                               No. 06-2802

Rodriguez-Rodriguez that § 1329 “contemplates multiple
lawful venues,” and nothing in § 1329 or in § 1326 itself
either “states or implies that an alien may be ‘found’ just
once.” 453 F.3d at 460. The defendant in Rodriguez-
Rodriguez was a deportee who had been arrested in Texas
for speeding and extradited to Wisconsin for failing to
register as a sex offender following his release from a
state sentence. Id. at 459. He was then indicted in the
Western District of Wisconsin for being “found in” the
United States after removal. He moved to dismiss, arguing
improper venue. Conceding that immigration authorities
did not actually know of his presence in this country until
he reached Wisconsin, he contended they should have
discovered his violation of § 1326(a)(2) when he was
arrested in Texas. Id.
  We rejected this argument, and in doing so substan-
tially qualified certain language in Herrera-Ordones, on
which the district court relied in this case. Id. at 461. In
Herrera-Ordones, also a venue case, the defendant was
arrested and convicted of battery in state court in Elkhart
County, in the Northern District of Indiana, using the
alias “Jose Rendon.” 190 F.3d at 506. After sentencing, the
Indiana Department of Corrections took custody of the
defendant and transferred him to a prison reception center
located in the Southern District of Indiana. Id. at 506-09.
A few weeks later he was interviewed by an INS agent
and admitted he had previously been deported; the INS
then confirmed his true identity through fingerprint
analysis. Id. at 509. He was indicted in the Southern
District of Indiana for being found in the United States
after deportation in violation of § 1326(a)(2). Id. at 507-08.
He argued improper venue, taking the position that the
INS should have known of his identity and status as a
previously deported alien when he was in the Elkhart
County Jail, in the Northern District of Indiana, because
No. 06-2802                                              9

the police knew that he used many aliases, including
some formulations of “Herrera-Ordones.” Id. at 510.
   This court held in Herrera-Ordones that “an alien is
‘found’ within the meaning of § 1326 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.” Id. We rejected the defendant’s constructive
knowledge argument as a factual matter, holding that “the
record demonstrates that the INS agents investigated
Mr. Herrera-Ordones’ identity and status with appropri-
ate methodological diligence after learning of his presence
in the Elkhart County Jail.” Id. at 511. We also rejected
the defendant’s argument that venue was improper
because he was in the Southern District involuntarily, by
prison transfer; “whether an alien was in a particular
location by choice has no relevance in venue determina-
tions. Venue is proper anywhere in the United States,
wherever the previously deported and reentered alien
is ‘found’ ” Id.
  Herrera-Ordones must be read in light of our later
opinions in Lopez-Flores and Rodriguez-Rodriguez constru-
ing the “found in” version of the § 1326(a)(2) offense as
a continuing offense. As such, whether the immigration
authorities exercised “appropriate diligence” in discover-
ing the deportee’s presence has no bearing on venue.
Rodriguez-Rodriguez limited the holding of Herrera-
Ordones as follows:
   Herrera-Ordones establishes that, when an alien
   frustrates earlier discovery of his identity and status,
   he is ‘found’ and may be prosecuted when federal
   agents at last stumble upon him in state prison; it
   does not hold (nor could it hold) that only when earlier
   discovery was impossible does actual discovery of an
   alien in state prison permit prosecution there. We now
   hold that venue may be laid wherever the alien is
10                                                 No. 06-2802

     located in fact, and as often as he is located, whether
     or not better coordination and diligence would have
     alerted federal officials to his presence and status
     earlier and elsewhere.
453 F.3d at 461 (emphasis in original). Similarly, Lopez-
Flores established that because the “found in” offense is
a continuing one, the precise date on which immigra-
tion authorities discover the deportee’s illegal presence
in this country is irrelevant to liability, although the
opinion acknowledged that “it may bear on the running
of the statute of limitations.” 275 F.3d at 663.
  Thus limited in light of these later developments in our
case law, Herrera-Ordones does not support Are’s argu-
ment (and the district court’s assumption) that construc-
tive knowledge—the date on which immigration authori-
ties should have discovered the § 1326(a)(2) violation—
triggers the statute of limitations. To be “found in” the
United States without permission after deportation means
to be “present in” the United States without permission
after deportation; the immigration agency’s “discovery”
of the alien (whether actual or constructive) is not an
element of the offense. We have held open the possibility
that the date of actual discovery might have a bearing on
the running of the statute of limitations. Lopez-Flores, 275
F.3d at 663. But because the “found in” version of
§ 1326(a)(2) is a continuing offense, the date on which
the immigration agency “should have discovered” the
alien is simply irrelevent.2


2
   Other circuits have adopted a variety of approaches to analyz-
ing statute of limitations questions in “found in” cases under
8 U.S.C. § 1326(a)(2). The Second Circuit has held that the
“found in” offense is not a continuing offense but adopted a
“constructive discovery” rule for cases in which the deportee
                                                   (continued...)
No. 06-2802                                                     11

  This only makes sense given the straightforward lan-
guage and manifest purpose of the statute. As we noted
in Rodriguez-Rodriguez, a deportee who has reentered
surreptitiously prolongs his illegal presence in the United
States each day he goes undetected. 453 F.3d at 460. The
limitations clock does not run during this period because
the deportee’s crime continues; he remains illegally
“present in” the United States.
  For other continuing offenses—conspiracy, escape, and
failure to report to prison, for example—the limitations
period does not begin to run until some affirmative event
puts an end to the defendant’s continuing criminal con-


2
   (...continued)
reenters by surreptitious border crossing or using fake docu-
ments at the border. United States v. Rivera-Ventura, 72 F.3d
277, 281-82 (2d Cir. 1995) (the “found in” offense is not a
continuing offense but where deportee reenters by stealth the
crime “is not complete until the authorities know, or with the
exercise of diligence typical of law enforcement authorities
could have discovered, the illegality of his presence”). The Third
Circuit has held that the “found in” offense is not a continuing
offense but adopted an “actual discovery” rule for cases in which
there is no record of when the deportee reentered. United States
v. DiSantillo, 615 F.2d 128, 137 (3d Cir. 1980) (if “the entry
was surreptitious and not through an official port of entry, the
alien is ‘found’ when his presence is first noted by the immigra-
tion authorities”). The Fifth, Eighth, and Eleventh Circuits,
without addressing whether the offense is a continuing one, have
held 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.” United States v. Santana-Castellano,
74 F.3d 593, 598 (5th Cir. 1996); see also United States v. Clarke,
312 F.3d 1343, 1347-48 (11th Cir. 2002); United States v. Gomez,
38 F.3d 1031, 1037 (8th Cir. 1994).
12                                                  No. 06-2802

duct. See United States v. Elliott, 467 F.3d 688, 690 (7th
Cir. 2006). In conspiracies this is the date the defendant
withdraws or is captured, and for escape and failure to
report, it is the date the defendant turns himself in or is
caught. Id. Applying a similar statute of limitations trigger
to the § 1326(a)(2) “found in” offense would start the
limitations period when the alien surrenders or is ar-
rested. The government argues, however, for the earlier
date of “actual discovery,” that is, the date when im-
migration authorities acquire actual knowledge of the
alien’s physical presence, identity, and status as a prior
deportee. We need not make a choice here, as both dates
are well within the five-year statute of limitations.3
  Immigration authorities learned of Are’s presence in
Chicago and ascertained his identity and status as a prior
deportee sometime in late 2003 or 2004. Are’s illegal
presence in the United States continued until his arrest on
June 20, 2005. The September 1, 2005 indictment was
timely whether the limitations period commenced when
immigration authorities actually “discovered” Are’s
presence, identity, and status or when they arrested him,
interrupting his illegal conduct. Accordingly, we REVERSE
the district court’s order dismissing the indictment and
REMAND the case for further proceedings.




3
   Other events, such as flight from justice, may toll the statute
of limitations. See 18 U.S.C. § 3290.
No. 06-2802                                        13

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—8-9-07
