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                                                                    [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15364
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:12-cr-20308-MGC-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

versus

YUNIER MORENO ROJAS,

                                                     Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 20, 2013)

Before WILSON, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Yunier Moreno Rojas appeals the district court’s denial of his motion to

dismiss his marriage fraud indictment on statute of limitations grounds. On April

27, 2012, the grand jury indicted Rojas and his wife, Soledad Marino, on charges

of marriage fraud, in violation of 8 U.S.C. § 1325(c), and making a false, fictitious,

or fraudulent statement to the Department of Homeland Security (DHS), in

violation of 18 U.S.C. § 1001(a)(2). Rojas contends that the government indicted

him for marriage fraud outside of the five-year statute of limitations, which began

to run on April 23, 2007, the date that he and Marino were married. After a

thorough review, we conclude that the plain meaning of § 1325(c) dictates that the

crime of marriage fraud is complete on the date of marriage and, as a result, the

government’s indictment was time-barred. The district court therefore abused its

discretion in denying Rojas’s motion to dismiss, and we now reverse.

                           I. BACKGROUND FACTS

      In May 2009, United States Immigration and Customs Enforcement (ICE)

received an “Application to Register Permanent Residence or Adjust Status” and

an “Application for Employment Authorization” from Marino, an Argentinian

citizen with no legal status in the United States and who had overstayed her

nonimmigrant visa. Marino claimed that she was the wife of a Cuban native or

citizen of the United States, and named Rojas as her husband. She also submitted a

copy of the marriage license, which stated what she and Rojas were married on


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April 23, 2007. In support of Marino’s application for permanent residence, both

she and Rojas submitted immigration forms listing addresses where they had

allegedly resided together since the date of their marriage.

      ICE investigators conducted a joint initial interview of Rojas and Marino on

August 24, 2009. Due to certain discrepancies in the couple’s supporting

documentation and in answers given during the course of the interview, the

investigators decided to interview Rojas and Marino separately. On September 18,

2009, during separate interviews, investigators questioned Rojas and Marino about

their marriage and the two gave inconsistent answers. When the investigator stated

his suspicion that the marriage was fraudulent, both Rojas and Marino

independently admitted to the fraud. Rojas ultimately signed a sworn statement

admitting that the marriage was a fraud, that he and Marino were merely friends,

and that he had entered into the marriage to help her obtain United States

residency.

      The government indicted Rojas and Marino on April 27, 2012. Rojas and

Marino moved to dismiss the indictment, arguing, inter alia, that the indictment

was untimely as to the marriage fraud count because it was filed more than five

years after April 23, 2007, the date that the couple married. After a hearing, the

district court denied the motion. The government later dismissed the charges

against Marino and proceeded to trial against Rojas on the marriage fraud count.


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Rojas was convicted and sentenced to 24 months’ probation. This appeal

followed.

                                  II. DISCUSSION

      We review the district court’s denial of a motion to dismiss an indictment for

abuse of discretion, but the interpretation and application of a statute of limitations

is a legal question that we review de novo. United States v. Torres, 318 F.3d 1058,

1061 n.6 (11th Cir. 2003). The interpretation of a criminal statute is a question of

law that we also review de novo. United States v. Murrell, 368 F.3d 1283, 1285

(11th Cir. 2004).

      Under § 1325(c), marriage fraud is committed by “[a]ny individual who

knowingly enters into a marriage for the purpose of evading any provision of the

immigration laws.” 8 U.S.C. § 1325(c). Because § 1325(c) does not reference a

specific statute of limitations, the statute of limitations is five years. See 18 U.S.C.

§ 3282(a) (“Except as otherwise expressly provided by law, no person shall be

prosecuted, tried, or punished for any offense, not capital, unless the indictment is

found or the information is instituted within five years next after such offense shall

have been committed.”). “Statutes of limitations normally begin to run when the

crime is complete.” United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998)

(internal quotation marks omitted).




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       The government argues, as it did below, that although the five-year statute of

limitations does apply to Rojas’s offense, his crime was not complete and the

statute of limitations did not begin to run until Rojas and Marino interviewed with

immigration officials on August 24, 2009, at which time the officials became

aware of the fraud.1 Rojas maintains that the crime was complete on April 23,

2007, the date that the couple married.

       The starting point for statutory interpretation purposes “is the language of

the statute itself.” United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir.

2012) (internal quotation marks omitted). “[W]e analyze the language of the

provision at issue, the specific context in which that language is used, and the

broader context of the statute as a whole.” Id. Our inquiry is complete if “the

provision has a plain and unambiguous meaning with regard to the particular

dispute in the case and the statutory scheme is coherent and consistent.” Id.

(internal quotation marks omitted). “[W]hen the import of the words Congress has

used is clear . . . we need not resort to legislative history, and we certainly should

not do so to undermine the plain meaning of the statutory language.” CBS Inc. v.




       1
        In portions of its brief, the government maintains that “the unlawful purpose . . . was not
manifested until, at the earliest, May 2009, when Marino and Rojas signed immigration forms
documenting the fraudulent marriage in support of Marino’s application for adjustment status.”
However, the government officially submits August 24, 2009, as the date the crime was
completed.
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PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) (alterations in

original) (internal quotation marks omitted).

       The United States Supreme Court has stated that statutes of limitations “are

to be liberally interpreted in favor of repose.” Toussie v. United States, 397 U.S.

112, 115, 90 S. Ct. 858, 860 (1970) (internal quotation marks omitted). “A statute-

of-limitations defense does not call the criminality of the defendant’s conduct into

question, but rather reflects a policy judgment by the legislature that the lapse of

time may render criminal acts ill suited for prosecution.” Smith v. United States,

__ U.S. __, 133 S. Ct. 714, 720 (2013). “Congress has declared a policy that the

statute of limitations should not be extended except as otherwise expressly

provided by law.” Toussie, 397 U.S. at 115, 90 S. Ct. at 860 (alteration and

internal quotation marks omitted).

       In this case, the district court abused its discretion in denying Rojas’s motion

to dismiss the indictment. To prove marriage fraud, the government must show

that (1) the defendant knowingly entered into a marriage (2) for the purpose of

evading any provision of the immigration laws.2 See 8 U.S.C. § 1325(c). It is

undisputed that Rojas and Marino married on April 23, 2007. It is likewise


       2
         We have not addressed whether the government must also prove an additional element,
required by some circuits, that the defendant entered the marriage with knowledge that the
conduct was unlawful. See, e.g., United States v. Chowdhury, 169 F.3d 402, 407 (6th Cir. 1999)
(holding that § 1325(c) requires the government to prove that the defendant knew his conduct
was unlawful). We decline to address this question because whether Rojas knew his conduct
was unlawful does not affect our analysis of when the crime was completed.
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undisputed that Rojas, at the time he entered into the marriage, did so for the

purpose of violating the immigration laws—namely, using the marriage to adjust

Marino’s immigration status. Filing for immigration benefits may serve as

circumstantial evidence of the defendant’s unlawful purpose and may lead, as it did

in this case, to charges and prosecution for making a false, fictitious, or fraudulent

statement to DHS, in violation of 18 U.S.C. § 1001(a)(2). The plain language of

the marriage fraud statute, however, cannot plausibly be read to require that a

defendant take the additional step of filing for immigration benefits in order for the

crime to be complete.3

       Moreover, contrary to the district court’s finding, nothing in the text of §

1325(c) compels the conclusion that Congress intended marriage fraud to be a

continuing offense. “A continuing offense is one which is not complete upon the

first act, but instead continues to be perpetrated over time.” United States v. De La

Mata, 266 F.3d 1275, 1288 (11th Cir. 2001). We construe such offenses narrowly

“[b]ecause the continuing offense doctrine extends the statute of limitations.” Id.

at 1288–89 (citing Toussie, 397 U.S. at 114–15, 90 S. Ct. at 860). “Thus, offenses

should not be considered continuing unless the explicit language of the . . . statute


       3
          The government points to an unpublished Fourth Circuit opinion, which held that it is
not an abuse of discretion to use the date that a defendant submitted applications to immigration
officials as the date of completion of the § 1325(c) marriage fraud offense in the charge to the
jury. See United States v. Khalaf, 390 F. App’x 216, 221–22 (4th Cir. 2010) (per curiam).
However, that opinion does not speak directly to the issue we confront here and, in any event, is
not controlling authority in this circuit.
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compels such a conclusion, or the nature of the crime involved is such that

Congress must assuredly have intended that it be treated as a continuing [offense].”

Id. at 1289 (alterations in original) (internal quotation marks omitted). Here,

Congress’s use of the phrase “enters into” in the explicit language of the statute—

an act that can only occur on the singular date that a marriage takes place—upends

the district court’s conclusion that marriage fraud is a continuing offense.

      Accordingly, because Rojas entered into a marriage with the purpose of

evading the immigration laws on April 23, 2007, he completed the crime of

marriage fraud on that date, more than five years before the government filed the

indictment. Based on its erroneous interpretation of the statute of limitations and

the date of the crime’s completion under § 1325(c), the district court abused its

discretion when it denied Rojas’s motion to dismiss. We therefore reverse the

district court and remand for proceedings not inconsistent with this opinion.

      REVERSED AND REMANDED.




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