United States v. Victor Tavarez-Levario
2015 U.S. App. LEXIS 9409
5th Cir.2015Background
- Victor Tavarez-Levario, a Mexican national, was indicted under 18 U.S.C. § 1546(a) for knowingly using a counterfeit I-551 and Social Security card to obtain employment on February 2, 2009.
- At rearraignment the government conceded the offense was "use" of counterfeit immigration documents but raised a statute-of-limitations issue because the indictment was returned more than five years after the 2009 conduct.
- The government argued "use" is a continuing offense and the limitations period therefore began to run when Tavarez’s employment ended (or when the ongoing use stopped).
- Tavarez pleaded guilty conditionally to preserve the statute-of-limitations question and appealed after the district court rejected his argument.
- The Fifth Circuit considered whether § 1546(a)’s use provision constitutes a continuing offense for the five-year general limitations period under 18 U.S.C. § 3282(a).
- The court concluded "use" is not a continuing offense, reversed the conviction, and remanded with instructions to dismiss the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "use" of a counterfeit or fraudulently obtained immigration document under 18 U.S.C. § 1546(a) is a continuing offense for statute-of-limitations purposes | Govt: "Use" is continuing when a defendant obtains employment based on counterfeit documents, so the offense persists during employment and tolls the limitations period | Tavarez: "Use" is a discrete act when the document is employed and does not inherently continue; limitations began at the 2009 act | The Fifth Circuit held § 1546(a) "use" is not a continuing offense; the indictment was untimely and must be dismissed |
Key Cases Cited
- Toussie v. United States, 397 U.S. 112 (establishes limits on applying the continuing-offense doctrine)
- United States v. Brazell, 489 F.3d 666 (5th Cir.) (defines continuing offense as uninterrupted series of acts)
- United States v. Midstate Horticultural Co., 306 U.S. 161 (defines "continuous unlawful act" concept)
- United States v. Yashar, 166 F.3d 873 (7th Cir.) (continuing-offense hallmark: ongoing threat after initial act)
- Bailey v. United States, 516 U.S. 137 (interpreting "use" contextually; various meanings)
- United States v. Cores, 356 U.S. 405 (holding statute penalizing remaining in country is continuing)
- United States v. Dunne, 324 F.3d 1158 (10th Cir.) ("use" of false document is a single act, not continuing)
- United States v. Edelkind, 525 F.3d 388 (5th Cir.) (statute-of-limitations runs until ongoing commission ends for continuing offenses)
- United States v. Hare, 618 F.2d 1085 (4th Cir.) (benefit from a discrete crime does not make it continuing)