17-3429
United States v. Ortega-Arreta

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local
Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 29th day of October, two thousand eighteen.

Present:
               PETER W. HALL,
               GERARD E. LYNCH,
                    Circuit Judges,
               VICTOR A. BOLDEN,
                    District Judge.*


United States of America,

              Appellant,

v.                                                                              17-3429-cr

Felipe Ortega-Arrieta,

              Defendant-Appellee.


For Appellee:                         STEVEN D. CLYMER, Assistant United States
                                      Attorney, for Grant C. Jaquith, United States


       * Victor A. Bolden, United Stated District Judge for the District of Connecticut, sitting by
designation.
                                 Attorney for the Northern District of New York,
                                 Syracuse, NY.

For Defendant-Appellant:         JAMES EGAN, Assistant Federal Public Defender,
                                 Syracuse, NY.

        Appeal from a judgment entered October 23, 2017, in the Northern District of

New York (Hurd, J.).

        UPON     DUE     CONSIDERATION,          IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is VACATED and

the case is REMANDED for further proceedings.

        The government appeals from the judgment of the district court dismissing the

one-count indictment charging defendant-appellee Ortega-Arrieta with unlawful

reentry on the ground that it was filed more than five years after the limitations

period had begun to run. We assume the parties’ familiarity with the underlying

facts, the procedural history, and the arguments presented on appeal, which we

describe only as necessary to explain our decision to vacate and remand.

        We review de novo a district court’s interpretation of statutes. See United

States v. Williams, 733 F.3d 448, 452 (2d Cir. 2013) (“Interpretations of statutes are

pure questions of law, and we therefore review de novo Williams’s claim that he was

‘found in’ the United States in 2002 within the meaning of sections 1326(a) and

(b)(2).”).

        The district erred in ruling that the indictment was untimely. Our 2013

decision in United States v. Williams, 733 F.3d 448 squarely governs this case. In

Williams, we noted two elements are required for an alien to be “found in” the United



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States in violation of 8 U.S.C. § 1326(a). First, authorities must “discover the illegal

alien in the United States.” Id. at 453 (internal quotation marks omitted). Second,

law enforcement must “know, or with the exercise of diligence typical of law

enforcement authorities could have discovered, the illegality of his presence.” Id. We

noted that the second requirement—that the illegality was known or should have

been known to federal authorities—was satisfied because federal officials knew

Williams was in the United States illegally because of his deportation in 1996. Id.

The central issue here, as it was in Williams, is when authorities “discovered” Ortega-

Arrieta.

      In Williams we rejected the defendant’s argument that a person would be

“discovered,” for the purposes of 8 U.S.C. § 1326(a), “when federal authorities possess

a lead that would have, if pursued, resulted in the apprehension of the person,”

concluding that this “approach would require law enforcement authorities to follow

up on every piece of material information entered into a large system supervised by

a limited staff, however impracticable this may be in light of the proverbial haystack

before them.” Id. at 454. We concluded “that a person who has illegally reentered is

‘found in’ the United States when his or her ‘presence is discovered,’ which we

understand to mean that the federal authorities possess reliable information as to the

alien’s whereabouts.” Id. at 455 (emphasis added) (quoting United States v. Whittaker,

999 F.2d 38, 41–42 (2d Cir. 1993)).

      The district court found that, under our reasoning in Williams, because

“federal officials were notified of [Ortega-Arrieta]’s arrest warrant pursuant to his



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FBI identification number via the NCIC system . . . federal officials obtained specific

information concerning [his] whereabouts in December 2011.” In other words, the

court concluded that because federal immigration officials were aware that the arrest

warrant existed, and because the arrest warrant contained reliable information about

Ortega-Arrieta’s whereabouts, he was “found” in December 2011, and thus that the

limitations period began to run at that time.

       In Williams, we rejected the defendant’s contention that an alien is “found”

when federal authorities “possess a lead that would have, if pursued, resulted in the

apprehension of the person.” Id. at 454. We need not decide in this case whether

federal authorities can be deemed to have possessed information simply because that

information has been placed in the NCIC database and automatically uploaded to a

database maintained by a federal agency. We may assume for the sake of argument

that the agency possessed that information. Even on that assumption, however, what

the federal authorities had—an entry in an NCIC system that, if pursued, would have

unearthed the actual arrest warrant bearing Ortega-Arrieta’s address—was not

sufficient for them to have “found” him. Our rule, under Williams is that federal

authorities have “found” an alien when they “possess reliable information as to the

alien’s whereabouts.” Id. at 455. Here, federal authorities did not “possess” the

warrant, and Ortega-Arrieta’s address was not within the information that we

assume arguendo the authorities did possess—specifically, information contained in

the NCIC entry. As a result, the district court erred when it dismissed the indictment

on limitations grounds.



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      Consequently, we conclude that the district court erred by ruling that the

indictment was untimely. We therefore vacate the district court’s judgment

dismissing the indictment.

      We VACATE the judgment of the district court and REMAND for further

proceedings.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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