United States District Court, D. Minnesota
Ann Marie Ursini, United States Department of Justice, Criminal Division, 1301 New York Avenue NW, Suite 200, Washington DC 20530; and Nathan P. Petterson, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, for Plaintiff.
Reynaldo Aligada, Jr., Office of the Federal Defender, 300 South Fourth Street, Suite 107, Minneapolis, Minnesota 55415; and Theresa M. Bevilacqua, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, Minnesota 55402, for Defendant.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on the Government's Objections [Doc. No. 47] to Magistrate Judge Steven E. Rau's December 30, 2014 Report and Recommendation [Doc. No. 46], which recommended that Defendant's Motion to Dismiss Indictment of Time-Barred Claims and for Pre-Indictment Delay [Doc. No. 24] be granted. For the following reasons, the Court sustains the Government's Objections and respectfully declines to adopt the Report and Recommendation.
Defendant Zdenko Jakisa was indicted on one count of being in possession of unlawfully-obtained documents in violation of 18 U.S.C. § 1546(a). (Indictment [Doc. No. 1] at 1.) The Indictment alleges:
On or about April 17, 2014, in the State and District of Minnesota, the defendant, ZDENKO JAKISA, did knowingly possess a document prescribed by statute and regulation as evidence of authorized stay and employment in the United States, that is a Permanent Resident Card (an I-551), commonly referred to as a "Green Card, " which the Defendant knew to have been procured by means of materially false claims and statements and otherwise unlawfully obtained, in that in response to oral and written questions during his refugee and legal permanent resident applications, Defendant failed to reveal:
a. He was a member of the armed forces of the Croatian Defense Council in Bosnia and Herzegovina ("Bosnia") during the Bosnian Conflict;
b. He had been arrested, charged, indicted and imprisoned for breaking or violating the law in Bosnia; and
c. He had committed crimes of moral turpitude in Bosnia.
(Id. at 1-2.)
Defendant moves to dismiss the Indictment on the grounds that it improperly asserts claims that are barred by the applicable statute of limitations and that there were pre-indictment delays that resulted in a violation of his rights to due process and a speedy trial. (Def.'s Mot. to Dismiss Indictment of Time-Barred Claims and for Pre-Indictment Delay [Doc. No. 24] ("Def.'s Mot.") at 1.) Both parties submitted briefing [Doc. Nos. 24, 32], and the matter was heard by the Magistrate Judge on October 31, 2014. After requesting and receiving supplemental briefing [Doc. Nos. 34, 36, 37], the Magistrate Judge issued his Report and Recommendation ("R&R") on December 30.
In the R&R, the Magistrate Judge noted that the parties agree on the following: the alleged offense is subject to the general five-year statute of limitations in 18 U.S.C. § 3282(a); the allegedly false statements were made, at the latest, in 2001 when Defendant applied for legal permanent resident status; and the events relevant to whether the statements actually were false occurred sometime before January 1998. (Report and Recommendation [Doc. No. 46] ("R&R") at 3.) Thus, the Magistrate Judge determined, the only question was when the five-year statute of ...