The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
On December 9, 2010, the Government filed an information charging Defendant Refugio Mata Franco ("Mata Franco") with unlawful re-entry under 8 U.S.C. § 1326(a)(2). Before the Court is Mata Franco's motion to dismiss  the information. Mata Franco contends that because more than five years have passed since the Immigration and Customs Enforcement ("ICE") division of the U.S. Department of Homeland Security ("DHS") had actual notice of Mata Franco's unlawful presence in the United States, the information is time-barred under 18 U.S.C. § 3262(a). For the reasons set forth below, the Court agrees with Mata Franco and grants his motion to dismiss the information .
Mata Franco was born in Mexico on November 18, 1973. He came to the United States in early 1974, and became a lawful permanent resident in February 1989, at the age of 16. Mata Franco was convicted of a crime and removed to Mexico on May 4, 2001, with a permanent bar to re-entry to the United States. He returned to the United States without permission. On September 19, 2003, Mata Franco was convicted of another crime and sentenced to a term of ten years' incarceration in state prison. Shortly thereafter, on December 8, 2003, the Law Enforcement Support Center ("LESC"), a unit of ICE that provides other law enforcement agencies with immigration and identity information on suspected criminal aliens, prepared a report, entitled "Worksheet for Oral Report," which was placed in Mata Franco's immigration file (also known as an "A-File"). The report provided Mata Franco's name, birth date, nationality, alien registration number, FBI number, and Illinois identifying number. In addition, the report stated that Mata-Franco was residing at that time at Robinson Correctional Center, and provides his expected release date. The report described Mata Franco as "IN-CUSTODY / PRIOR DEPORT / AGGRAVATED FELON." [15, Ex. A.] The Work Sheet, along with the rest of Mata Franco's A-File, was forwarded from an ICE unit in Williston, Vermont, to the Chicago Field Office of ICE on December 9, 2003, and was received by the Chicago Field Office two days later.
As the Government advised, when an alien subject to removal is held in custody by a federal, state, or local law enforcement agency, an ICE field office generally will issue a detainer pursuant to 8 C.F.R. § 287.7(a) to advise other law enforcement agencies that DHS seeks custody of that individual in order to arrest and remove him. The detainer serves as "a request that such agency advise [DHS], prior to the release of the alien, in order for [DHS] to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible." 8 C.F.R. § 287.7(a). In Mata Franco's case, it is unclear from the ICE / DHS documents in his A-file whether ICE ever issued a detainer to state law enforcement authorities, despite ICE's awareness (as evidenced by the December 8, 2003 Work Sheet) that Mata Franco was in state custody and despite the Chicago Field Office's receipt of Mata Franco's A-file.*fn1
The Government's surmise that no detainer was issued is consistent with the course of events following the completion of Mata Franco's state sentence on November 22, 2006. He was released from state custody and placed on parole, from which he was discharged on April 17, 2008. In early December 2010, ICE received a telephone tip about Mata Franco's whereabouts. On December 9, 2010, ICE agents arrested Mata Franco and placed him in administrative detention. Mata Franco tendered to the Government and to the Court (in camera) certain documents, including tax records and pay stubs, indicating that he was not concealing his presence in this country during the time between his release from state custody in 2006 and his arrest by ICE agents in 2010. The Government filed an information charging Mata Franco with illegal re-entry under 8 U.S.C. § 1326(a)(2) on January 28, 2011.
Federal Rule of Criminal Procedure 7(c)(1) sets forth the substantive requirements of an indictment or information. FED. R. CRIM. P. 7(c)(1). The Seventh Circuit teaches that an informationcomplies with Rule 7(c)(1) where it (1) states the elements of the offense charged,
(2) fairly informs the defendant of the nature of the charge so that he may prepare a defense, and
(3) enables him to plead an acquittal or conviction as a bar against future prosecutions for the same offense. United States v. Black, 125 F.3d 454, 465 (7th Cir. 1997).
A party seeking to challenge the sufficiency of an indictment or information under Rule 7(c) may do so by way of a pretrial motion pursuant to Rule 12(b)(3)(B). FED. R. CRIM. P. 12(b)(3)(B). Courts are to review the sufficiency of an information "by looking at the language it employs, separate and apart from the facts proved at trial." Black, 125 F.3d at 465. Courts should take care not to "blur" considerations regarding the sufficiency of an information with those regarding sufficiency of the evidence. Id; see also United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (stating that a Rule 12(b)(3)(B) motion to dismiss an indictment is not "a means of testing the strength or weakness of the government's case" (internal quotation marks and citations omitted)). Thus, while an indictment or information may be dismissed if it is subject to a defense that raises a purely legal question (see United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003)), a defense that relates to the strength of the Government's evidence ordinarily must wait for the trial. Moore, 563 F.3d at 586 (stating that at the motion to dismiss phase a court is to determine "whether it's possible to view the conduct alleged" as constituting the crime charged); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988) (affirming the district court's dismissal of an indictment "not because the government could not prove its case, but because there was no case to prove").
The offense of illegal re-entry is committed when a person who was previously removed either "(1) enters the United States; (2) attempts to enter the United States; or (3) is at any time found in the United States" without the permission of the Attorney General. United States v. Gordon, 513 F.3d 659, 663 (7th Cir. 2007) (citing United States v. Herrera-Ordones, 190 F.3d 504, 509 (7th Cir. 1999)) (emphasis added), abrogated on other grounds by United States v. Bartlett, 567 F.3d 901 (7th Cir. 2009); see also 8 U.S.C. § 1326(a)(2). The third, "found in" type of violation -- the one at issue in this case -- is committed when an alien "enters via a surreptitious border crossing or 'enters through a recognized port by means of specious documentation that conceals the illegality of his presence.'" Gordon, 513 F.3d at 663 (quoting United States v. Acevedo, 229 F.3d 350, 355 (2d Cir. 2000)).
The general five-year limitations period for non-capital offenses under 18 U.S.C. § 3282(a) applies to § 1326(a)(2) offenses. See United States v. Are, 498 F.3d 460, 461 (7th Cir. 2007) (applying the five-year limitations period set forth in § 3282(a)(2) in an illegal re-entry case). Accordingly, an information (or indictment) that charges a § 1326(a)(2) offense must be filed within five years of the date on which the illegal re-entry offense is "complete." See Toussie v. United States, 397 U.S. 112, 115 (1970). This case presents the following question: when a previously deported alien surreptitiously reenters the United States, does the Government's actual notice of his identity, presence, and status as a previously deported alien start the five-year clock running for purposes of the so-called "found in" version of illegal re-entry under § 1326(a)(2)? Although Seventh Circuit precedent provides a good deal of analytical guidance on that question, there does not appear to be any controlling ...