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United States v. Mutisya

United States District Court, W.D. Missouri, Western Division

September 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FIDELINA MUTISYA, Defendant.

          REPORT AND RECOMMENDATION

          Lajuana M. Counts United States Magistrate Judge

         Pending before the Court is the Motion to Dismiss Defendant Fidelina Mutisya From Case (Doc. #34). For the reasons set forth below, it is recommended that the motion be denied.

         I. INTRODUCTION

         On May 21, 2019, the grand jury returned a four-count Indictment against defendants Roggers Onyango Guche, Fidelina Mutisya, and Nellie Mbote. Count One charges that beginning in 2007 and continuing through the present, defendants Guche, Mutisya, and Mbote conspired with each other and others to commit offenses against the United States, that is, to enter into fraudulent marriages for the purpose of circumventing United States immigration laws in exchange for money, in violation of 18 U.S.C. § 371. Counts Two through Four charge only defendant Mbote.

         II. DISCUSSION

         Defendant Mutisya contends that the charges against her should be dismissed as the five-year statute of limitations has run. (Mutisya Mot. to Dismiss at 1-2; Doc. #34.) Specifically, defendant Mutisya argues that “the conspiracy ended on December 16, 2010, when Defendant received her permanent residency without conditions. Additionally, the last overt act would have been committed on December 7, 2010, when Defendant mailed a statement to the USCIS [United States Citizenship and Immigration Services] in furtherance of her May 17, 2010, I-751 application.” (Id. at 2.) The Indictment was returned on May 21, 2019, “eight and one-half years (8 ½) since that last overt act.” (Id.)

         “‘[T]he crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement.'” United States v. Stewart, 841 F.Supp.2d 431, 435 (D. Me. 2012)(quoting Grunewald v. United States, 353 U.S. 391, 397 (1957)). Defendant Mutisya attempts to define the conspiracy in a way that suits her, stating that the “the conspiracy ended on December 16, 2010, when Defendant received her permanent residency without conditions.” However, the Indictment does not allege that the sole purpose of the conspiracy was for the defendants to receive their permanent residency without conditions. Rather, the Indictment set forth the Purpose of the Conspiracy as follows:

18. The purpose of the conspiracy was for defendants to fraudulently obtain conditional resident status, lawful permanent resident status, and eventual citizenship in the United States by paying United States citizens money to enter into fraudulent marriages which would allow them to circumvent United States immigration laws, and making fraudulent representations in immigration documents submitted to, and proceedings with, USCIS, all for the personal benefit of defendants and others.

(Indictment at 6; Doc. #1.)

         The statute of limitations for prosecutions initiated against a conspiracy to commit an offense against the United States or to defraud the United States is five years. See 18 U.S.C. § 3282(a). “It is well settled that conspiracy is a continuing offense that continues through the last overt act committed in furtherance of the conspiracy.” Ashraf v. Lynch, 819 F.3d 1051, 1053 (8th Cir. 2016). For the conspiracy charge to be timely, the indictment must allege “the commission of at least one overt act by one of the conspirators within that [five year] period in furtherance of the conspiratorial agreement.” United States v. Ongaga, 820 F.3d 152, 158 (5th Cir.), cert. denied, 137 S.Ct. 211 (2016). Given that the Indictment against defendant Mutisya was returned on May 21, 2019, the last overt act committed in furtherance of the conspiracy must be alleged to have occurred on or after May 21, 2014. The Indictment sets forth the following overt acts that are alleged to have occurred after May 21, 2014:

q. On or about June 6, 2014, Mbote filed Form N-400 with USCIS, falsely representing to the United States government that she had never committed a crime or offense for which she was not arrested and had never given false or misleading information to any U.S. government official while applying for any immigration benefit;
s. On June 18, 2014, Guche made false statements to a United States immigration officer during an interview for adjudication of the Form N-336;
t. On August 27, 2014, Mbote made false statements to a United States immigration officer during an interview for the adjudication of the Form N-400; and
u. From June 2007 up until June 2017 Mutisya continued to make payments to USC2[1] for his ongoing cooperation in ...

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