United States of America v. Pastor-Perez

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Case: 5:25-cr-O0466-DCN Doc #: 15 Filed: 12/08/25 1 of 9. PagelD #: <pagelD>

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
UNITED STATES OF AMERICA ) JUDGE DONALD C. NUGENT
)
Plaintiff, ) CASE NO.: 5:25 CR 466
)
)
vs. ) MEMORANDUM OPINION
} AND ORDER
)
FELIX PASTOR-PEREZ, )
)
Defendant. )

This matter is before the Court on Defendant, Felix Pastor-Perez’s Motion to Dismiss
Indictment. (ECF #11). The Government filed a Response in Opposition to the Motion, and the
Defendant filed a Reply in support of his position. (ECF #12, 14). The Defendant argues that the
charges contained in the indictment are time-barred under 18 U.S.C. §3282(a). The Government
counters that the alleged crimes are subject to the continuing offense doctrine, and therefore, the

indictment was timely. For the reasons set forth below, Defendant’s motion is DENIED.

Case: 5:25-cr-O0466-DCN Doc #: 15 Filed: 12/08/25 2 of 9. PagelD #: <pagelD>

FACTUAL BACKGROUND’

The Defendant, Mr. Pastor-Perez is not a United States citizen. At the time of his arrest, he
was employed with AZZ Galvanizing. Employment records from AZZ Galvanizing include an I-
9 Employment Eligibility Form for Mr. Pastor-Perez in which he used another name, date of birth,
and social security number to establish eligibility for employment. The identifying information
used by the Defendant belonged to a United States citizen. Mr. Pastor-Perez signed the form
attesting, under penalty of perjury, that he was a United States citizen. The form was submitted to
AZZ Galvanizing on March 14, 2017, which was the same day his employment began. There is no
evidence before the Court that would indicate that Mr. Pastor-Perez used this form, or the
identifying information contained therein for any purpose since that date. The wage report for
AZZ Galvanizing, shows that Mr. Pastor-Perez received wages under the assumed name and social
security number through the first quarter of 2025.

Mr. Pastor-Perez was arrested, along with multiple other workers at AZZ Galvanizing on
August 6, 2025, on suspicion of being an undocumented alien working fraudulently under the
assumed identity of a United States citizen. On September 17, 2025, Mr. Pastor-Perez was named
in a three-count indictment alleging the following violations: (1) False claim to US citizenship to
Engage Unlawfully in Employment, in violation of 18 U.S.C. §1015(e); (2) Misuse of a Social
Security Number, in violation of 42 U.S.C. §408(e)(7)(B); and, (3) Aggravated Identity Theft, in

violation of 18 U.S.C. §1028(a)(1).

1

The facts have been taken from the allegations in the indictment. These facts are
accepted as true for purposes of this opinion only. They should not be construed as
findings of the Court.

Case: 5:25-cr-O0466-DCN Doc #: 15 Filed: 12/08/25 3 of 9. PagelD #: <pagelD>

ANALYSIS

A pre-trial motion to dismiss for failure to state an offense under Fed. R. Crim. P.
12(b)(3)(B)(v) may be resolved without trial if it raises a question of law rather than a question of
fact. See, United States v. Jones, 542 F.2d 661, 664 (6" Cir. 1976). In this case, the Defendant
alleges that the Indictment does not state an offense because the statute of limitations bars its
prosecution. In determining whether this question can be resolved by pretrial motion, the Court
must accept the facts alleged in the indictment as true. See, Boyce Motor Lines, Inc. v. United
States, 342 U.S. 337, 343, n. 16 (1952).

The parties agree that the relevant statute of limitations for all three charges is five years.
18 U.S.C. §3282(a). The period of limitations begins to run at the time “such offenses have been
committed.” Jd. Ordinarily, a crime is complete when “every element of the crime has been
accomplished.” Toussie v. United States, 397 U.S. 112 (1970); see also, United States v. Lutz, 154
F.3d 581, 586 (6" Cir. 1998). However, the continuing offense doctrine creates an exception to
the rule that the statute of limitations begins to run when the elements are first completed.

The continuing offense doctrine provides that criminal acts which involve a prolonged
course of conduct, extends the otherwise applicable statute of limitations until the conduct ends.
Toussie at 115. In Toussie, the Supreme Court identified two scenarios which justify application
of the continuing offense doctrine: (1) when “the explicit language of the relevant statute compels
this conclusion,” ; or, (2) when “the nature of the offense charged is such that Congress must
assuredly have intended that the offense be treated as a continuing one.” Jd. ; see also, United
States v. Del Percio, 870 F.2d 1090, 1095 (6" cir. 1989). When the conduct of a continuing

offense “spans the statute of limitations period. . . the crime is not barred by the statute of

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limitations as long as the proscribed course of conduct continues into the limitations period.”
Toussie at 115.

The Government does not argue that there is any explicit language making the charged
offenses continuing. They do contend, however, that due to the nature of offense charged,
Congress must have intended it be a continuing one. Specifically, they claim that as long as Mr.
Pastor-Perez continued to be employed based on his false representations, the misconduct should
be construed as continuing. The parties agree that neither the United States Supreme Court nor the
Sixth Circuit have weighed in on whether the specific offenses charged against Mr. Pastor-Perez’s

should be treated as continuing offenses.

A. Count One: False Claim to United States Citizenship (18 U.S.C. §1015(c)).

Count One of the Indictment alleges that “On or about March 14, 2017, continuing to on or
about August 6, 2025, .. . Defendant Felix Pastor-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.” The Government appears to
concede that the indictment is based on a single false statement made in March of 2017. If this
conduct is treated as a single isolated act, the statute of limitations would have run in March of
2022, and the indictment would have to be dismissed. However, although there is no evidence or
argument that Mr. Pastor-Perez made any additional false statements after March 14, 2017, the
Government does allege that he remained employed at AZZ Galvanizing through August 6, 2025.
Because his continued employment was possible only due to his employer’s on-going acceptance

of the false statement made in 2017, the government contends that the act of misrepresentation was

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on-going, and should, therefore, be treated as a continuing offense.

As the Sixth Circuit has not yet weighed in on the question of whether a false statement
under 18 U.S.C. §1015(e) should be treated as a continuing offense, the defendant asks the Court
to consider the reasoning espoused by the Fifth and Tenth Circuits in analogous cases. The Fifth
Circuit’s case of United States v. Tavarez-Levarior, 788 F.3d 433 (5" cir. 2015), held that using a
fraudulent document to obtain employment under 18 U.S.C. §1546(a), should not be considered a
continuous offense lasting the duration of the resulting term of employment. The Tavarez-
Levarior court reasoned that “[t]here is nothing about the ‘use’ of an immigration document that
denotes temporal longevity. . . a person uses a counterfeit or fraudulently obtained immigration
document when he employs the document for a purpose. . . to obtain employment. . . these uses of
a counterfeit or fraudulently obtained immigration document naturally occur in incidents of finite
duration.”

The Tenth Circuit has similarly found that the use of fraudulent social security number to
open bank accounts should not be treated as continuing conduct for purposes of the statute of
limitations, even if the defendant benefits from the use of the accounts beyond the limitations
period. United States v. Payne, 978 F.2d 1177 (10" Cir. 1992). Though neither of these cases
deals with the specific statute at issue here, they address the issue of how to treat a singular
misrepresentation that continues to provide future access to a benefit that is dependent on the
fraudulent representation. Both circuits relied on the general understanding “that the crime is
complete at the time of the representation.” Jd. at 1180, see also, Tavarez-Levarior, 788 F.3d at
439,

The Fifth and Tenth Circuit cases, though more on point factually, remain unconvincing.

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The Tenth Circuits reliance on the general premise that a crime of misrepresentation is complete at
the time the representation is made does not meaningfully address the exception that the
government seeks to employ. There is no dispute that the general premise generally holds true.
However, there is an exception when the nature of the crime is “such that Congress must assuredly
have intended that the offense be treated as a continuing one.” Toussie, 397 U.S. at 115. Further,
the Fifth Circuit’s reasoning that the use of a fraudulent immigration document for employment
purposes does not suggest “temporal longevity” is not persuasive. Making fraudulent claims of
citizenship to obtain and engage in employment does implicate temporal longevity in that the
defendant intends to obtain continuing employment, by allowing an employer to continuously
believe that the defendant is a citizen who can be legally employed.

After reviewing all of the cited cases, the court finds that only Jones provides a convincing
basis for a decision in this matter. Although Jones is factually distinguishable, the logic translates
to the facts of this case. That case involved a crime of possession, which is, inherently an on-
going crime. The defendant in Jones had continuous possession of an illegal weapon. Rather than
charging him with each separate date of possession, the court recognized that possession is by its
nature an on-going act that can only logically be charged as a continuous offense. Jd. The Sixth
Circuit described a continuing offense as one that “each day brings a renewed threat of the evil
Congress sought to prevent.

When determining whether to dismiss an indictment, the Court must accept the facts in the
indictment as true. The indictment alleges that Mr. Pastor-Perez knowingly made a false statement
that he was a United States citizen with the intent to engage unlawfully in employment, on or

about March 14, 2017, continuing to on or about August 6, 2025. It includes an assertion of

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continuing conduct for a period of time extending into 2025. Although the government has not
argued that there was a series of misrepresentations over this period of time, they are, in essence,
arguing that because he knew his employment was reliant on his misrepresentation of citizenship,
each day Mr. Pastor-Perez showed up to work, or received a paycheck, he was implicitly renewing
his original false representation.

The Court finds this argument persuasive. Mr. Pastor-Perez made a false statement on his
job application in March of 2017. He continued to represent that he was a citizen who could be
lawfully employed each time he showed up to work and accepted a paycheck under the fraudulent
name and identifying information of a United States citizen. The “evil” sought to be addressed by
18 U.S.C. § 1015(e) is the illegal employment of a non-citizen. That “evil” continues to be
perpetrated as long as a defendant continues to appear at work and receive payment under the
guise of being a citizen. Congress, therefore, must assuredly have intended the continuation of the
illegally obtained employment to be a continuation of the offense.

This is further supported by the language in the statute which makes the fraudulent
misrepresentation illegal not only when it is intended to obtain employment, but also when it is
intended to engage in employment. Engaging in employment implicates a continuing course of
conduct, whereas obtaining is a singular event. The explicit reference to engaging in employment
would be rendered meaningless if it were conflated with the singular intent to obtain employment.

Recognizing this violation as a continuing offense does not compromise the reason behind
the statute of limitations. The Supreme Court has stated that the purpose of the statute of
limitations is

to limit exposure to criminal prosecution to a fixed period of time following the

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occurrence of those acts the legislature has decided to punish by criminal sanctions.

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. Such a time limit may also have the salutary effect of

encouraging law enforcement officials promptly to investigate suspected criminal

activity.
Toussie, at 114-115. So long as a defendant is engaging in employment under a fraudulent name

. and identifying information, there is little risk that the facts underlying the crime of

misrepresentation will become obscured. Further, there is no need to guard against any danger of
punishment for far-distant acts because the misrepresentation remains active, and the defendant
continues to benefit from the criminal activity. In short, for the duration of his employment, Mr.

Pastor-Perez was knowingly and falsely claiming to be a citizen of the United States, with the

intent to engage unlawfully in employment.

B. Count Two: Misuse of Social Security Number (42 U.S.C. §408(a)(7)(B)).

The arguments and analysis of the continuing nature of Count Two mirror those made for
Count One. If anything, the case for treating this offense as continuing is even stronger than it was
for Count One, because the payment Mr. Pastor-Perez received for his employment through
August 6 of 2025 was paid and reported to the IRS under the social security number he provided.
Therefore, he was repeatedly misusing the social security number by accepting these checks and
having taxes taken out and attributed to that social security number. In other words, by continuing
to rely on someone else’s social security number and other receive his paychecks and pay his

taxes, Mr. Pastor-Perez was continuing to claim this information as his own.

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C. Aggravated Identity Theft (18 U.S.C. §1028A(a)(1)

The third count is a charge of aggravated identity theft, alleging Mr. Pastor-Perez
knowingly used the identifying information of another actual person to perpetuate his conduct in
Counts One and Two. The parties agree that if there remains a cause of action for the predicate
offenses, then there is no basis upon which to dismiss Count Three. Therefore, as the Court has
found that Counts One and Two allege continuing offenses that preclude the strict application of

the five year statute of limitations, Count Three also remains a viable claim.

CONCLUSION

For the reasons set forth above, the Court finds that Defendant, Mr.Pastor-Perez’s Motion
to Dismiss Indictment is not supported by the record or by the applicable law. The motion is,

therefore, DENIED. (ECF #11). IT IS SO ORDERED.

nal byt

DONALD C. NUGENT (|
United States District J "(

DATED: Wty main 5, 2025