     Case: 14-50415   Document: 00513077292    Page: 1   Date Filed: 06/12/2015




                       REVISED JUNE 12, 2015

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                No. 14-50415                          FILED
                                                                   June 5, 2015
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

                                          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.
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                                  No. 14-50415

                                  I. Background
      On March 26, 2014, Victor Tavarez-Levario (“Tavarez”), a citizen of the
Republic of Mexico, was indicted by a federal grand jury for having knowingly
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



      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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a defendant to enter a conditional plea of guilty with the consent of the court
and government).
        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


        2For 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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document is a continuing offense: when an individual obtains employment
based on the presentation of a counterfeit immigration document, the
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

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       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
       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


       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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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 . . . .”);
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),

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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
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




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COLLEGIATE DICTIONARY 1302 (10th ed. 1994) (“to circulate (as a counterfeit
note) as if legal or genuine”). 5
       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.


       5Cf. 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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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
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

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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
‘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

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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
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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