United States of America v. Perez

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
EMILIO ALVAREZ PEREZ,
Defendant.
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CASE NO. 5:25-cr-401
JUDGE CHARLES E. FLEMING
MEMORANDUM OPINION AND
ORDER
Before the Court is Defendant Emilio Alvarez Perez’s motion to dismiss Counts 2, 3, and
4 of the Indictment (“Motion to Dismiss”). (ECF No. 14). The Government filed its response in
opposition, (ECF No. 15), and Plaintiff his reply in support, (ECF No. 16). 	For the following
reasons, the Motion to Dismiss is GRANTED.
I. 	BACKGROUND
On August 19, 2025, a federal grand jury indicted Defendant on four counts: (i) Illegal
Reentry of Removed Alien, in violation of 8 U.S.C. § 1326(a) (Count 1); (ii) False Claim to U.S.
Citizenship to Engage Unlawfully in Employment, in violation of 18 U.S.C. § 1015(e) (Count 2);
(iii) Misuse of Social Security Number, in violation of 42 U.S.C. § 408(a)(7)(B) (Count 3); and
(iv) Aggravated Identify Theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count 4). (ECF No. 1).
In Count 2, the Indictment alleges that:
On or about June 24, 2013, continuing to on or about August 6, 2025, in the
Northern District of Ohio, Eastern Division, and elsewhere, Defendant EMILIO
ALVAREZ PEREZ, knowingly made a false statement and claim that he was, or at
any time had been, a citizen and national of the United States, with the intent to
engage unlawfully in employment in the United States, in violation of Title 18,
United States Code, Sections 1015(e).
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(Id. at PageID #1–2). In Count 3, the Indictment alleges that:
From on or about June 24, 2013, continuing to on or about August 6, 2025, in the
Northern District of Ohio, Eastern Division, Defendant EMILIO ALVAREZ
PEREZ, for the purpose of gaining employment, knowingly and with the intent to
deceive, falsely represented a social security account number with the last four
digits “9860” to be the social security account number lawfully assigned to him by
the Commissioner of Social Security, when in fact such social security account
number had not been assigned to him by the Commissioner of Social Security, in
violation of Title 42, United States Code, Section 408(a)(7)(B).
(Id. at PageID #2). 	Count 4 is premised on the allegations set forth in Counts 2 and 3. 	(Id. at
PageID #2–3).
On November 4, 2025, Defendant filed the Motion to Dismiss. (ECF No. 14). Defendant
argues that Counts 2, 3, and 4 of the Indictment should be dismissed because they are each barred
by the applicable five-year statute of limitations. 	(Id. at PageID #49–51). 	The Government
responds that Counts 2, 3, and 4 are not time barred because Counts 2 and 3 qualify as continuing
offenses under Toussie,1 Defendant’s concealment efforts should otherwise toll the statute of
limitations, and Count 4 is a continuing offense since it is premised on predicate offenses that are
also continuing offenses (Counts 2 and/or 3). (ECF No. 15, PageID #67–72). Defendant replies
that Counts 2 and 3 do not qualify as continuing offenses under the two-part Toussie test and there
is no factual or legal support for tolling the statute of limitations. (ECF No. 16, PageID #74–78).
II. 	MOTION STANDARD
Defendant’s motion to dismiss is governed by Federal Rule of Criminal Procedure
12(b)(3)(B)(v), which provides that a criminal defendant may move to dismiss an indictment for
the Government’s “failure to state an offense.” An indictment properly charges a criminal offense
if it “first, contains the elements of the offense charged and fairly informs a defendant of the charge
against which he must defend, and second, enables him to plead an acquittal or conviction in bar
1 Toussie v. United States, 397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970).
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of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974).
The Court must take the indictment’s factual allegations as true and decide only whether the
indictment is “valid on its face.” Costello v. United States, 350 U.S. 359, 363 (1956); see United
States v. Williams, 504 U.S. 36, 54–55 (1992) (limiting pretrial review of indictments to facial
challenges).
II. 	DISCUSSION
As an initial matter, both parties do not dispute that the applicable statute of limitations for
18 U.S.C. § 1015(e) (Count 2), 42 U.S.C. § 408(a)(7)(B) (Count 3), and 18 U.S.C. § 1028A(a)(1)
(Count 	4) 	is 	five 	years, 	as 	provided 	by 	the 	catchall 	provision 	for 	non-capital 	federal
offenses. See 18 U.S.C. § 3282(a) (“Except as otherwise expressly provided by law, no person
shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found
or the information is instituted within five years next after such offense shall have been
committed.”); (ECF No. 14, PageID #45; ECF No. 15, PageID #65). The parties also agree that
the determination of whether any of the relevant offenses constitute a continuing offense is
controlled by the two-part test provided in Toussie. (ECF No. 14, PageID #45–46; ECF No. 15,
PageID #65–66). The Court will first address Count 3, before turning to Count 2 and then 4.
A. 	Count 3: Misuse of Social Security Number – 42 U.S.C. § 408(a)(7)(B)
Defendant argues that Count 3 should be dismissed as time-barred because the five-year
statute of limitations began to run on June 24, 2013, the date Defendant allegedly made the false
representation about a social security account number not assigned to him; he asserts there is no
allegation that he made a false representation within the five years preceding the Indictment. (ECF
No. 14, PageID #50). 	He contends that the alleged violation of § 408(a)(7)(B) is a one-time,
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discrete event, and not a continuing offense under the Toussie test and in light of the Tenth Circuit’s
opinion in United States v. Payne.2 (Id.).
The Government responds that § 408(a)(7)(B) should be considered a continuing offense
because “the conduct charged in Count 3 ‘endures beyond the initial illegal act’ as the Defendant
concealed his true identity, fraudulently used the social security number of a U.S. citizen and
continued to do so for nearly twelve years”; it asserts Defendant continued to “misuse” the social
security number twice a month until he received his last paycheck in August 2025—well within
the five-year statute of limitations. (ECF No. 15, PageID #71). The Government also points to
other courts having consistently found that violations of other sections of § 408, specifically
§ 408(a)(4), to be continuing offenses. 	(Id. at PageID #71–72). 	Defendant replies that the
government’s argument, which focuses on the benefit obtained rather than the act criminalized in
the statute, was explicitly rejected by the Tenth Circuit in Payne. (ECF No. 16, PageID #78).
1. 	Continuing Offense Standard
In Toussie v. United States, the Supreme Court held that the “purpose of a statute of
limitations is to limit exposure to criminal prosecution to a certain fixed period of time following
the occurrence of those acts the legislature has decided to punish by criminal sanctions.” 397 U.S.
112, 114, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). 	“Such a limitation is designed to protect
individuals from having to defend themselves against charges when the basic facts may have
become obscured by the passage of time and to minimize the danger of official punishment because
of acts in the far-distant past.” Id. at 114–15. As a result, “criminal limitations statutes are to be
liberally interpreted in favor of repose.” Id. at 115.
2 978 F.2d 1177 (10th Cir. 1992).
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It is well settled in the Sixth Circuit that “[t]he statute of limitations begins to run when a
crime is complete, that is, when each element of the crime charged has occurred.” United States
v. Grenier, 513 F.3d 632, 636 (6th Cir. 2008) (citing United States v. Lutz, 154 F.3d 581, 586 (6th
Cir. 1998)); see also United States v. Crossley, 224 F.3d 847, 859 (6th Cir. 2000) (citing Toussie,
397 U.S. at 115). The statute of limitations should not be extended “except as otherwise provide
by law.” See 18 U.S.C. § 3282. One such exception is the doctrine of continuing offenses, which
“should be applied in only limited circumstances.” Toussie, 397 U.S. at 115. Under the two-part
test set forth in Toussie, an offense should not be considered a continuing offense for purposes of
tolling the statute of limitations unless: (i) ”the explicit language of the substantive criminal statute
compels such a conclusion”; or (ii) the nature of the crime involved is such that Congress must
assuredly have intended that it be treated as a continuing one.” Id. at 115.
2. 	Step One – Explicit Language of the Statute
The Court finds that the offense in Count 3, a violation of 42 U.S.C. § 408(a)(7)(B), does
not qualify as a continuing offense under the first step of the Toussie test. 42 U.S.C. § 408(a)(7)(B)
provides, in relevant part, that:
Whoever[, for any purpose,] with intent to deceive, falsely represents a number to
be the social security account number assigned by the Commissioner of Social
Security to him or to another person, when in fact such number is not the social
security account number assigned by the Commissioner of Social Security to him
or to such other person; . . . shall be guilty of a felony[.]
There is nothing in the explicit, plain language of § 408(a)(7)(B) that compels the conclusion it is
a continuing offense. The statute does not use the phrase “continuing offense,” nor does it mention
the statute of limitations. As a result, the offense in Count 3 does not qualify under the first prong.
See United States v. Del Percio, 870 F.2d 1090, 1096 (6th Cir. 1989) (concluding that the explicit
language of a statute (42 U.S.C.S. § 1383a(a)(3)(A)) did not satisfy the first prong of the Toussie
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test because it did not use the term continuing offense or mention the statute of limitations and
when it began to run).
3. 	Step Two – Nature of the Offense Charged
Under the second step of the Toussie test, the Court must consider the nature of the offense
and whether Congress must assuredly have intended § 408(a)(7)(B) to be treated as a continuing
offense. “The hallmark of the continuing offense is that it perdures beyond the initial illegal act,
and that ‘each day brings a renewed threat of the evil Congress sought to prevent’ even after the
elements necessary to establish the crime have occurred.” United States v. Yashar, 166 F.3d 873,
875 (7th Cir. 1999) (quoting Toussie, 397 U.S. at 122). 	Critical to this inquiry is determining
“whether Congress intended to punish a particular act or a course of conduct.” United States v.
Jones, 533 F.2d 1387, 1390–92 (6th Cir. 1976) (citing United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 224, 97 L. Ed. 260, 73 S. Ct. 227 (1952)). 	The classic examples of a
continuing offense include conspiracy, escape, kidnapping, and crimes of possession. See United
States v. Pontz, 132 F.4th 10, 25 (1st Cir. 2025); Yashar, 166 F.3d at 875; United States v. Banks,
708 F. Supp. 2d 622, 624 (E.D. Ky. 2010) (citing cases); United States v. Motz, 652 F. Supp. 2d
284, 293 (E.D.N.Y. 2009) (same).
The Court finds that 42 U.S.C. § 408(a)(7)(B), does not qualify as a continuing offense
under the second step of the Toussie test. 	The Tenth Circuit explicitly addressed whether
§ 408(a)(7)(B) constitutes a continuing offense and addressed many of the arguments currently
raised by the Government. 	The Tenth Circuit held that § 408(a)(7)(B) was not a continuing
offense, providing the following analysis:
Like the statute at issue in Toussie, nothing in the plain language of 408(a)(7)(B)
nor the nature of the crime itself supports the government’s contention that
Congress intended it to be a continuing offense. 	Section 408(a)(7)(B) prohibits
“falsely represent[ing] a social security number.” Had Congress intended the crime
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to continue beyond the point that Defendant made the false representations,
Congress could easily have prohibited concealing or failing to disclose a true social
security number as it did in another subsection. 	See 42 U.S.C. 408(a)(4)
(prohibiting “conceal[ing] or fail[ing] to disclose” the occurrence of an event
affecting the continued right to payment). See also United States v. Morrison, 43
F.R.D. 516, 519 (N.D. Ill. 1967) (failure to notify Social Security Administration
of beneficiary’s death was a continuing course of conduct under 408(a)(4) until
notification of death was provided). 	However, by only prohibiting a false
representation, Congress expressed its intention that the crime is complete at the
time of the representation. See United States v. Joseph, 765 F. Supp. 326, 330 (E.D.
La. 1991) (violation of 408(a)(7)(B) is complete when the false representation is
made).
Similarly, we find no merit in the government’s contention that Defendant’s failure
to correct the erroneous social security numbers constituted a reaffirmation of the
false representation. 	After Defendant falsely represented the social security
numbers to the payors, he made no further representations of the erroneous social
security numbers nor did he file any income tax returns. While the payors relied
on Defendant’s false representation and conveyed the erroneous social security
numbers to the IRS within the limitations period, Defendant is criminally liable
only for his own false representations under the plain language of the statute. Cf.
United States v. Davis, 533 F.2d 921, 928 (5th Cir. 1976) (government agency’s
reliance, 	within 	five 	years 	of 	indictment, 	on 	defendant’s 	earlier 	false
representations did not extend statute of limitations for conspiring to violate 18
U.S.C. 1001 by knowingly and willfully making false statements). To accept the
government’s construction of the statute would require us to read into the statute an
affirmative duty by Defendant to correct the erroneous social security numbers on
the 1099 forms he received from the payors. Absent some support in the language
of the statute for the government’s construction, we decline to adopt it.
United States v. Payne, 978 F.2d 1177, 1180–81 (10th Cir. 1992).
The Court adopts the above analysis. Congress wrote § 408(a)(7)(B) to bar a single act, a
false statement, and could have easily written the statute to include a continuing duty to disclose,
like it did in § 408(a)(4), but it chose not to do so. Like the Tenth Circuit, the Court declines to
read in such an affirmative duty.3
The Government’s argument that Count 3 should be considered a continuing offense
because Defendant continually received paychecks over the past 13 years also fails. 	While
3 The Court notes that, although the Sixth Circuit has not addressed whether § 408(a)(7)(B) is a continuing offense,
the Court has found no case where a court has found § 408(a)(7)(B) to be a continuing offense.
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Defendant may have continued to receive a benefit from his false statement in the form of continual
paychecks, the statute criminalizes the false statement itself and not the reception or enjoyment of
any benefit. Moreover, the Fifth Circuit expressly addressed this exact argument in United States
v. Tavarez-Levario, 788 F.3d 433 (5th Cir. 2015). The Fifth Circuit found the argument flawed
and rejected it, stating:
First, under Toussie, the analysis of whether a crime constitutes a continuing
offense involves examining the offense itself, not the defendant’s particular
conduct. 	See Toussie, 397 U.S. at 115. 	Second, the fact that a particular
defendant’s conduct provided long-term benefits to that defendant does not mean
that his offense is a continuing one. See Dunne, 324 F.3d at 1165 (an offense was
not a continuing one simple because the defendant “committed a crime which had
continuing effects after its completion”); United States v. Hare, 618 F.2d 1085,
1086-87 (4th Cir. 1980) (rejecting the argument that improper receipt of anything
of value for performance of an official act was a continuing offense where the
defendant received a loan that provided benefits over a prolonged period). Instead,
the nature of the offense itself must be such that it inherently involves criminal
activity of an ongoing or continuous character. See Toussie, 397 U.S. at 115, 122.
Even a crime that naturally occurs in a single, finite incident can produce prolonged
benefits to an offender; this does not mean that the statute of limitations refrains
from running until all benefits of the criminal act dissipate. E.g., Dunne, 324 F.3d
at 1165; United States v. Payne, 978 F.2d 1177, 1180–81 (10th Cir. 1992); Hare,
618 F.2d at 1086-87.
Taverez-Levario, 788 F.3d at 440–41. The Court finds this analysis persuasive and adopts it fully.
Defendant contends that the alleged false statement occurred on June 24, 2013, with the
only evidence being a Form I-9, Employment Eligibility Verification, obtained from Defendant’s
employer AZZ Galvanizing (“Form I-9”). 	(ECF No. 14, PageID #44; ECF No. 14-1). 	The
Form I-9 was signed by Defendant on June 24, 2013, and consists of Defendant falsely claiming
to be a U.S. citizen and using Albert Ramos Moreno’s name, personal information, and social
security number. (ECF No. 14-1, PageID #53–54). The Government does not dispute Defendant’s
contention that the false statement at issue occurred on June 24, 2013; nor does it provide any other
evidence or argument that Defendant engaged in subsequent submissions of a false statement
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related to a false social security number or his citizenship. The Government does not argue that
Defendant himself subsequently submitted any form to his employer or the federal government in
the intervening years wherein he falsely represented that a social security number was assigned to
him. The Government instead relies entirely on its argument that Count 3 is a continuing offense,
which the Court has rejected.4 	(See ECF No. 15, PageID #71–72). 	Because the undisputed
evidence demonstrates that Defendant’s last false representation of a social security number
occurred on June 24, 2013, and the Indictment was not returned until August 19, 2025, Count 3 is
barred by the five-year statute of limitations. See Payne, 978 F.2d at 1180. Count 3 is therefore
DISMISSED WITH PREJUDICE.
B. 	Count 2: Claim to U.S. Citizenship to Engage Unlawfully in Employment – 18
U.S.C. § 1015(e)
Similar to Count 3, Defendant argues that the offense in Count 2 is barred by the statute of
limitations because: (i) it is a false statement offense that refers to a one-time, discrete event
(making a false statement to obtain employment); (ii) the allegation in Count 2 occurred on June
24, 2013; and (iii) neither the explicit language of the statute nor the nature of the offense suggest
it is a continuing offense. (ECF No. 14, PageID #49–50). The Government responds that Count 2
is not time-barred because it is a continuing offense under the second prong of the Toussie test and
the statute of limitations is tolled by Defendant’s concealment. (ECF No. 15, PageID #67–71).
The Court will first address whether Count 2 qualifies as a continuing offense under the
Toussie test. The Court will then address the Government’s argument as to whether the statute of
limitations should be tolled based on alleged concealment efforts.
4 Thus, this case is distinguishable from United States v. Hernandez-Madrid, 493 F. App’x 822 (8th Cir. 2012). In
Hernandez-Madrid, the Eighth Circuit distinguished that case from Payne and found that the charged offense under
§ 408(a)(7)(B) was not time-barred because Hernandez-Madrid did more than simply fail to correct or disclose a
falsely provided social security number; within the five-year statute of limitations, she initiated new contact with her
former employer after quitting her job and presented herself again as the assumed identity with the intent of her
employer reinstating her in the payroll system using the falsely provided social security number. Id. at 824–25.
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1. 	Toussie Step One – Explicit Language of the Statute
The Court finds that the offense in Count 2, a violation of 18 U.S.C. § 1015(e), does not
qualify as a continuing offense under the first prong of the Toussie test. 	18 U.S.C. § 1015(e)
provides, in relevant part, that:
Whoever knowingly makes any false statement or claim that he is, or at any time
has been, a citizen or national of the United States, with the intent to obtain on
behalf of himself, or any other person, any Federal or State benefit or service, or to
engage unlawfully in employment in the United States . . . [s]hall be fined under
this title or imprisoned not more than five years, or both.
There is nothing in the explicit, plain language of § 1015(e) that compels the conclusion it is a
continuing offense. 	Similar to § 408(a)(7)B), this statute does not use the phrase “continuing
offense,” nor does it mention the statute of limitations. 	Thus, the offense in Count 2 does not
qualify as a continuing offense under the first prong. See Del Percio, 870 F.2d at 1096.
2. 	Toussie Step Two – Nature of the Offense Charged
Considering the nature of the offense, the Court finds that 18 U.S.C. § 1015(e) does not
qualify as a continuing offense under the second prong of the Toussie test. Section 1015(e) is a
false statement offense. As discussed above, such offenses are generally not considered by courts
to be continuing offenses. 	The Court finds the false statement offense under § 1015(e) to be
sufficiently similar to the one found under § 408(a)(7)(B), which the Court has found to not qualify
as a continuing offense. 	The analysis adopted by the Court from the Fifth Circuit in Tavarez-
Levario also applies to § 1015(e), as the Fifth Circuit found an analogous statute (18 U.S.C.
§ 1546(a)) to not qualify as a continuing offense. See Tavarez-Levario, 788 F.3d at 440–41.
The Court finds the Government’s argument about the phrase “to engage unlawfully in
employment” in the statute to be unpersuasive. 	Engaging unlawfully in employment is not an
element of an offense under § 1015(e). Instead, it goes to the requisite intent required under the
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statute. A person has committed a violation under § 1015(e) as soon as they knowingly make a
false statement or claim that they are or have been a United States citizen or national with the intent
to engage unlawfully in employment in the United States. 	As soon as they make the false
statement, every element of the crime is complete. The person need not attain employment nor
remain employed; as long as they made the false statement with the requisite intent, the statute has
been satisfied. As noted above, within the Sixth Circuit, “[t]he statute of limitations begins to run
when a crime is complete, that is, when each element of the crime charged has occurred.” Grenier,
513 F.3d at 636.
The Court also finds the Government’s argument about continued harm unpersuasive. The
statute itself contemplates only a single act (the making of a false statement or claim). While there
may be continuing effects from the alleged false statement made on June 24, 2013, that is not
sufficient to classify a violation of § 1015(e) as a continuing violation. As discussed above, the
Toussie test involves examining the offense itself and not a defendant’s specific conduct, and any
long-term benefits resulting from a defendant’s conduct do not necessarily qualify an offense as a
continuing one. See Taverez-Levario, 788 F.3d at 440–41; see also United States v. Dunne, 324
F.3d 1158, 1165 (10th Cir. 2003) (“The government appears to be arguing that Dunne committed
a crime which had continuing effects after its completion. Such consequences, however, are not
alone sufficient to warrant classifying violations of § 1001 as continuing offenses.”). Accordingly,
the Court finds that the offense in Count 2, a violation of 18 U.S.C § 1015(e), is not a continuing
offense because it fails both prongs of the Toussie test.
3. 	Tolling the Statute of Limitations – Concealment
The Government alternatively argues that the statute of limitations should be tolled because
Defendant concealed the conduct charged in Count 2. The Court finds this argument unpersuasive
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for several reasons. First, the Government has provided no evidence of concealment of the offense.
The Government alleges and argues that Defendant actively concealed his identity by claiming to
be Albert Ramos Moreno from June 2013 until August 2025. (ECF No. 15, PageID #68–69). But
the Government does not cite or provide any evidence with its response. The only evidence on the
record is the false statement of citizenship found in the Form I-9 from June 24, 2013—which is
the basis of the offense itself. Defendant receiving paychecks for the next twelve years does not
provide evidence of active concealment, and there is no evidence that Defendant made any
subsequent false statements regarding his citizenship or took efforts to conceal his illegal conduct.
The Government also provides no caselaw, and the Court has not found any, where an initial false
statement and the subsequent failure to correct the false statement/information (specifically when
there is no affirmative duty in the relevant statute) constitutes grounds for tolling of the statute of
limitations. Most importantly, the Court does not find it appropriate to toll the statute of limitations
in the circumstances presented in this case.
Second, the caselaw cited by the Government in support of tolling is inapposite. 	The
Government cites Del Percio for the proposition that concealment crimes might be continuing
offenses. (ECF No. 15, PageID #70–71). However, the offense in Count 2 is not a concealment
offense, but a false statement offense. Del Percio opines that certain “possessory” offenses can be
considered continuing offenses based on a defendant’s conduct—such as concealing the alleged
violations and precluding discovery. 	807 F.2d at 1097. 	Once again, this case involves a false
statement/use offense and not a possessory offense. The Government provided no evidence that
Defendant concealed the offense or otherwise took affirmative actions to preclude the Government
from discovering the offense.
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The Government primarily cites United States v. Lazo-Rodriguez, 569 F. App’x 103 (3rd
Cir. 2014), in support of its tolling argument. That case involved a defendant challenging a district
court’s denial of a motion to dismiss a charge of unlawful reentry under 8 U.S.C. § 1326,
specifically a “found in” violation, as barred by the statute of limitations. Lazo-Rodriguez, 569 F.
App’x at 104. Notably, the Sixth Circuit and other courts have found that a “found in” violation
under § 1326 is a continuing offense. See United States v. Jimenez, 605 F.3d 415, 422 (6th Cir.
2010), abrogated on other grounds by, Tapia v. United States, 546 U.S. 319, 131 S. Ct. 2382, 180
L. Ed. 2d 357 (2011); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996). Lazo-
Rodriguez also involved determining whether the Government had constructive knowledge of the
re-entry offense, finding that the defendant’s affirmative act of deception upon re-entry did not
impute constructive knowledge of the offense to the Government. 	569 F. App’x at 105–07.
However, constructive knowledge is not at issue here. With no evidence of active concealment,
and no caselaw supporting tolling in the circumstances presented in this case, the Court finds that
the statute of limitations for Count 2 was not tolled.
In summation, the Court finds that the offense charged in Count 2, a violation of 18 U.S.C.
§ 1015(e), does not qualify as a continuing offense and the statute of limitations was not tolled.
Because the undisputed evidence demonstrates that Defendant’s last false representation of
citizenship occurred on June 24, 2013, and the Indictment was not returned until August 19, 2025,
Count 2 is barred by the five-year statute of limitations. See Payne, 978 F.2d at 1180. Count 2 is
therefore DISMISSED WITH PREJUDICE.
C. 	Count 4: Aggravated Identify Theft – 18 U.S.C. § 1028A(a)(1)
Defendant argues that Count 4, Aggravated Identify Theft, is time-barred because it
depends on Counts 2 and 3 as predicate felonies, which themselves are barred by the applicable
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statute of limitations. (ECF No. 14, PageID #50–51). The Government concedes that aggravated
identity theft under § 1028A(a)(1) requires a predicate offense but argues that Count 4 is not time-
barred because Counts 2 and 3 (the predicate offenses) are both continuing offenses. (ECF No. 15,
PageID #72). Both sides essentially agree that whether Count 4 is time-barred by the statute of
limitations depends on whether Count 2 or Count 3 are both time-barred themselves.
The Sixth Circuit has not addressed whether the timeliness of a charge under § 1028A is
determined by looking at the predicate offenses and whether § 1028A offense can be considered a
continuing offense if the predicate offenses themselves are continuing offenses.5 Regardless, the
Court need not resolve this matter. 	18 U.S.C. § 1028A prohibits 	certain conduct committed
“during and in relation to” specifically enumerated predicate felony offenses. The plain language
of the statute indicates that the predicate felony offenses in this case (Counts 2 and 3) are an
essential element of the § 1028A offense charged in Count 4. Because the Court has found Counts
2 and 3 are not continuing offenses and they are barred by the applicable statute of limitations,
Count 4 no longer is supported by a predicate offense (an essential element) and therefore fails.
Furthermore, Count 4 is premised on conduct that the Court has found to have occurred on June
24, 2013. Thus, because the predicate offenses are not continuing offenses, Count 4 would also
be barred by the five-year statute of limitations under 18 U.S.C. § 3282. 6 Accordingly, Count 4 is
DISMISSED WITH PREJUDICE.
5 Several courts have issued opinions indicating that an aggravated identify theft offense qualifies as a continuing
offense when a predicate felony is also a continuing offense. See, e.g., United States v. Treacy, No. 5:13cr00018,
2014 U.S. Dist. LEXIS 200228, at *22 (W.D. Va. Jan. 28, 2014) (“Because the essential elements of both Section
1028A(a)(1) charges include underlying felonies, and because both of those predicate felonies are continuing offenses,
the Section 1028A(a)(1) charges here are themselves properly construed as continuing offenses.”); United States v.
Akoto, 61 F.4th 36, 41 (1st Cir. 2023).
6 See United States v. Wilson, 2011 U.S. Dist. LEXIS 129938, at *6 (S.D.N.Y. July 11, 2011) (finding that § 1028A
is governed by the five-year statute of limitations under § 3282(a) because § 1028A’s plain language has no provision
expressly altering the default rule under § 3282(a) and the law does not expressly provide for an alternate limitations
period).
Case: 5:25-cr-00401-CEF Doc #: 17 Filed: 12/03/25 14 of 15. PageID #: <pageID>

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IV. 	CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss Counts 2, 3, and 4 of the
Indictment (ECF No. 14) is hereby GRANTED. 	Counts 2, 3, and 4 of the Indictment are
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Date: December 3, 2025
____________________________________
CHARLES E. FLEMING
UNITED STATES DISTRICT JUDGE
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