UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DELFINO NATALIO DE LEON-RAMIREZ, a/k/a Enrique Roblero Escobar, a/k/a Alejandro Pablo Hernandez, a/k/a Delfino Puac-Deleon, a/k/a Delfino Deleon-Ramerez, a/k/a Delfino De Leonfino-Ramirez, Defendant – Appellant.
No. 18-4121
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
May 29, 2019
PUBLISHED
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:17-cr-00089-HEH-DJN-1)
Argued: January 31, 2019
Decided: May 29, 2019
Before WYNN, DIAZ, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wynn and Judge Richardson joined.
ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Stephen David Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Delfino Natalio De Leon-Ramirez was indicted for illegal reentry more than 10 years after the government learnеd that he had unlawfully reentered the United States. Although the limitations period for this offense was five years, the district court refused to dismiss the indictment as untimely because it found that De Leon-Ramirez was “fleeing from justice,” which tolled the statute of limitations. See
I.
A.
In 2005, De Leon-Ramirez pleaded guilty to making counterfeit immigration doсuments. He served about seven months of a 15-month sentence before being deported to his native Guatemala in March 2006. Unbeknown to authorities, however, De Leon-Ramirez reentered the United States some time later.
Then, in February 2007, De Leon-Ramirez walked into an auto parts store in Chesterfield County, Virginia, and asked to exchange an old clutch. The store clerk obliged, but De Leon-Ramirez was unsatisfied with the replacement part and soon returned demanding a different model. When the store clerk this time refused, an argument erupted. The police were called, and De Leon-Ramirez was arrested.
Upon his arrest, De Leon-Ramirez gave the police sergeant, Bradford Connor, a Mexican ID showing the name “Enrique Roblero Escobar.” J.A. 109. After taking De Leon-Ramirez into custody, Connor had the booking department run his fingerprints, which produced an FBI record under the name “Delfino Puac-Deleon” and a Virginia record under “Alejandro Hernandez.” Id. The birth date on the Mexican ID, like the name, didn‘t line up with those in the database.
De Leon-Ramirez was charged with larceny and trespassing and released on bond nine days later. The paperwork accompanying his release, all completed under the name “Delfino Puac-Deleon,” lists an address in Richmond, a telephone number, and a defense attorney‘s name and telephone number. J.A. 114–119. The papers also note a hearing scheduled for April 30, 2007, in Chesterfield County district court. The only document that De Leon-Ramirez signed, however, sets a hearing date for March 30, 2007. De Leon-Ramirez didn‘t appear on April 30, but the record doesn‘t show whether he appeаred on March 30 or knew that the court had actually scheduled his hearing for a month later.
Nine years passed. Then, in May 2016, Richmond police arrested De Leon-Ramirez on unrelated charges. He was released on bond and, once more, failed to attend his court hearing. Another arrest warrant issued, which got the attention of federal authorities: ICE began its own fugitive investigation and arrested De Leon-Ramirez about a year later.
B.
Facing a single-count indictment for illegal reentry under
The magistrate judge first found that the limitations period commеnced in May 2007, when ICE learned of De Leon-Ramirez‘s illegal presence in the United States. The judge based this finding primarily on Detective Farmer‘s May 2007 email, which mentioned that he had spoken with ICE, and a handwritten note in De Leon-Ramirez‘s ICE file listing the address and aliases he gave Chesterfield County police. Though heavily litigated below, the finding that ICE knew in 2007 about De Leon-Ramirez‘s unlawful return is undisputed on appeal.
However, the magistrate judge concluded that the indictment was nonetheless timely because De Leon-Ramirez fled from justice, which tolled the statute of limitations. J.A. 213. “[T]hrough the use of aliases and failure to appear at court hearings,” he wrote, De Leon-Ramirez “concealed himself with the intent to avoid arrest and prosecution.” Id.
The judge also emphasized “the context of [De Leon-Ramirez‘s] repeated efforts to illegally enter the United States and avoid detection of his illegal status,” as well as his prior conviction for creating fake immigration documents. Id.
De Leon-Ramirez filed objections to the magistrate judge‘s report. But about two weeks later—and before the district court had ruled on the motion to dismiss—the parties struck a conditional plea agreement under which De Leon-Ramirez would plеad guilty but could appeal the denial of his motion to dismiss. To “facilitate the plea agreement” and “expedite [the] appeal,” the parties together asked the district court to adopt the report and recommendation “over the objections filed by Defendant” and stipulated that no hearing or further briefing about De Leon-Ramirez‘s motion to dismiss was necessary. J.A. 255.
At a plea hearing thаt same day, the district court expressed concern about the
De Leon-Ramirez was later sentenced to 21 months in prison followed by two years of supervised release. He then appealed the denial of his motion to dismiss the indictment.
II.
Before reaching the merits, we address a procedural question that we raised with the parties: whether the district court conducted the requisite de novo review of the magistrate judge‘s report and recommendation.
The Federal Magistrates Act allows the district court to refer pretrial matters to a magistrate judge.
The district court‘s duty to independently review the magistrate judge‘s report upon objection advances Congress‘s intent that district judges bear “primary responsibility for supervision of federal magistrates’ functions.” United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). As the court of appeals, therefore, we generally don‘t reach factual or legal questions in a magistrate judge‘s report that were not first subject to de novo review by the district court. For instance, we usually don‘t allow parties to appeal a mаgistrate judge‘s findings that were not objected to below, as
In this case, parts of the record suggest that the district court did not conduct the de novo review that is required before wе may reach the merits of this appeal. Most troublingly, the district court suggested that the parties’ conditional guilty plea, which asked it to adopt the report and recommendation over De Leon-Ramirez‘s objections, “preclude[d] [the court] from making any changes” to the report. J.A. 232. Clearly, a court that felt bound to accept the magistrate judge‘s report couldn‘t conduct anything like the robust, indеpendent review contemplated by the Federal Magistrates Act. See
At the same time, however, other evidence suggests the district court did in fact conduct the appropriate review. The court told counsel at the hearing that it had reviewed the report‘s findings and conclusions de novo, and its order reflected that it had “conducted a de novo review of the objections.” J.A. 255. Given that, we think it fair to presume that the district court complied with its obligations under the statute. See Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996) (“[T]he district court is presumed to know that de novo review is required.“). We therefore turn to the merits of the appeal.1
III.
The sole merits issue is whether the district court should have dismissed De Leon-Ramirez‘s indictment as untimely. Because the illegal reentry statute provides no statute of limitations, prosecutions are subject to the general five-year limitations period for non-capital crimes. See
De Leon-Ramirez‘s partiсular illegal reentry crime is complete when a noncitizen, after being deported, “is at any time found in” the United States without official permission.
We have yet to decide precisely when the limitations period begins tо run on this offense. See United States v. Uribe-Rios, 558 F.3d 347, 352–56 (4th Cir. 2009) (holding that, even if constructive knowledge of defendant‘s illegal presence triggered statute of limitations for
Even if a crime is complete, however, the statute of limitations doesn‘t run while the defendant is a fugitive. The question in
A.
The fugitive tolling statute provides, in full, that “[n]o statute of limitations shall extend to any person fleeing from justice.”
Other circuits, however, have encountered this statute more recently. And the “modern and prevalent” approach is that fugitive tolling requires proof, by a preponderance of evidence, “that the defendant concealed himself with the intent to avoid prosecution.” United States v. Greever, 134 F.3d 777, 780–81 (6th Cir. 1998); accord United States v. Florez, 447 F.3d 145, 151 (2d Cir. 2006) (collecting cases). But see In re Assarson, 687 F.2d 1157, 1162 (8th Cir. 1982) (mere “absence from the jurisdiction,” without intent to avoid arrest, suffices to prove fugitive status). We adopt the intent-based approach as it accords with the text of
Our sister circuits have identified several factors that can indicate a defendant‘s intent to evade arrest or prosecution. For instance, such intent “may be inferred from a person‘s failure to surrender to authorities once he learns that charges against him are pending.” United States v. Catino, 735 F.2d 718, 722 (2d Cir. 1984). The defendant‘s absence from the jurisdiction, though “not a required element,” may also evince his intent to avoid prosecution. Greever, 134 F.3d at 780. So may his use of aliases and false information. See Rivera-Ventura, 72 F.3d at 284–85 (fugitive defendant gave false address to immigration service and false names to local police). And the nature and extent of efforts to apprehend the defendant may also be a relevant factor. Florez, 447 F.3d at 152; see Ferebee, 295 F. at 851 (government couldn‘t find fugitive defendant despite searching his parents’ house, speaking to neighbors, and reading mail).
Fugitive status is a factual question reviewed for clear error. E.g., Ross v. U.S. Marshal, 168 F.3d 1190, 1193 (10th Cir. 1999); United States v. Fonseca-Machado, 53 F.3d 1242, 1243 (11th Cir. 1995).3 We therefore won‘t disturb such a finding unless we are left with the “definite and firm conviction” that a mistake was made. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
De Leon-Ramirez argues that the record doesn‘t support the district court‘s finding that, between spring 2007 and June 2017, he concealed himself with the intent to avoid arrest and prosecution. Were that true, the statute of limitations would have expired in 2012, rendering his indictment untimely. Applying the principles outlined above, however, we cannot say that the district court clearly erred.
Several facts support its conclusion. Most notably, De Leon-Ramirez sought to withhold his true identity from law enforcement. The record shows that when he was arrested by Sergeant Connor following the clutch incident in 2007, De Leon-Ramirez presented a Mexican ID bearing a false name and birth date. And after the police blew this ruse by finding the “Puac-Deleon” alias, De Leon-Ramirez permitted the authorities to believe this was his correct name, as its appearance throughout his bond paperwork—including on papers signed by De Leon-Ramirez—demonstrates. As other courts have recognized, the use of aliases by someone facing prosecution suggests an intent to avoid the pending lеgal process. See Rivera-Ventura, 72 F.3d at 285 (noncitizen “who knows he is subject to criminal prosecution and who gives . . . law enforcement authorities false names and addresses has engaged in acts of self-concealment that may properly be found to constitute” flight under
The record also shows that on two occasions, in April 2007 and May 2016, De Leon-Ramirez failed to show up for scheduled court dates. Although “failure to make a court appearance in itself” may not necessarily render one a fugitive from justice, United States v. Singleton, 702 F.2d 1159, 1169 (D.C. Cir. 1983), the record shows incriminating circumstances beyond the missed court dates themselves. Specifically, it shows that De Leon-Ramirez, knowing charges were pending against him in Chesterfield County, failed to appear for trial after giving county authorities false information about his name, birth date, and nationality. We cannot say it was clear error to infer an intent to avoid prosecution from this course of conduct.
De Leon-Ramirez argues, however, that we cannot draw conclusions from the missed court appearance on April 30, 2007 because the only papers De Leon-Ramirez signed gave an incorrect trial date. Without other evidence that he intended to shirk his pending charges, we might agree. But the fact that De Leon-Ramirez gave false information to the same law enforcement authorities makes it quite plausible that he did not miss his trial out of simple misunderstanding.
The official response to De Leon-Ramirez‘s missed April 30 hearing also raises fair suspicion about that failure to appear. First, a warrant issued for his arrest, which at least hints that he hadn‘t appeared to answer the charges against him on March 30. Second, and more importantly, the authorities saw fit to engage a “fugitive detective,” who then told ICE and the U.S. Marshals that he was looking for De Leon-Ramirez and asked for help with his search. These measures don‘t depict an investigation so thorough that we can infer De Leon-Ramirez‘s flight based on them alone. Cf. Florez, 447 F.3d at 154 (law enforcement sought defendant at various locations, and spoke with family, cоworkers, and friends); Greever, 134 F.3d at 780–81 (government searched for defendant at two locations and repeatedly tried to find him after learning he had moved). But that the authorities took these steps does, at the very least, suggest De Leon-Ramirez never tried to answer his charges, even on the incorrect date.
We finally note the dearth of evidence that De Leon-Ramirez maintained contact with either the court or his defense counsel. Such efforts might have suggested that De Leon-Ramirez intended to resolve the charges against him and therefore undermined the government‘s claim that he was a fugitive. The lack of such evidence, combined with De Leon-Ramirez‘s attempts to deceive law enforcement, only bolsters the conclusion that he missed his trial intentionally. See Singleton, 702 F.2d at 1169 (“[T]he facts that [the defendant] failed to appear, that he did not notify the bail agency of his change of address, and that he failed to maintain contact with his attоrney would tend to indicate flight.“).
In sum, the record supports the district court‘s factual finding that De Leon-Ramirez was “fleeing from justice,” tolling the statute of limitations under
AFFIRMED
AFFIRMED