Opinion
Case No. 4:19-cr-1
08-15-2019
UNITED STATES of America v. Juan Mendoza BALLEZA
Jay Woods, U.S. Department of Justice (Chattanooga USAO) Office of U.S. Attorney, Chattanooga, TN, for Plaintiff.
Jay Woods, U.S. Department of Justice (Chattanooga USAO) Office of U.S. Attorney, Chattanooga, TN, for Plaintiff.
MEMORANDUM OPINION
TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE
On January 8, 2019, a federal grand jury returned a one-count indictment charging Defendant with illegally reentering the United States in violation of Title 8, United States Code, Section 1326. (Doc. 1.) Because the Bail Reform Act mandated Defendant's release pending trial, Immigrations and Customs Enforcement ("ICE") took custody of and transported him to its LaSalle Processing Center in Jena, Louisiana, to begin deportation proceedings, even though the trial of this case was set to begin on June 24, 2019.
On June 17, 2019, the Court conducted a final pretrial conference. (Doc. 50.) At that conference, the Government confirmed that Defendant was in Jena, Louisiana, and explained that ICE would return him "to his home country any day now." (June 17, 2019 Hrg. Tr.) The Assistant United States Attorney notified the Court that he did not have the authority to arrange for ICE to transport Defendant back to Chattanooga, Tennessee, for trial. (Id. ) At the end of the final pretrial conference, the Court instructed the parties to appear on June 24, 2019, and to be prepared to discuss how this case should proceed if Defendant was not present for trial. (Id. )
The term "Government" refers to the Office of the United States Attorney for the Eastern District of Tennessee.
On June 20, 2019, the Government filed a motion for writ of habeas corpus ad prosequendum, requesting that the Court command the warden of ICE's LaSalle Processing Center to produce Defendant for trial. (Doc. 52.) The Court denied the Government's motion because such a writ would have conflicted with Sixth Circuit precedent that a district court cannot enjoin ICE from detaining and deporting a removable alien simply to complete criminal proceedings against the alien. (Doc. 54, at 1–2 (citing United States v. Veloz-Alonso , 910 F.3d 266 (6th Cir. 2018).) The Court further ordered that trial would begin, as scheduled, on June 24, 2019. (Id. at 2.)
On June 24, 2019, the Government and Defendant's counsel appeared for trial. Defendant, however, was not present, because ICE chose not to transport him to his trial. (See Doc. 57.) As a result, the Government orally requested that the Court reconsider its denial of a writ of habeas corpus ad prosequendum. (See June 24, 2019 Hrg. Tr.) Conversely, Defendant's counsel orally moved to dismiss the indictment against Defendant with prejudice, arguing that ICE's failure to produce Defendant for trial violated: (1) his due process right to be present at his trial; (2) his right to confront witnesses; and (3) his right to counsel. (Id. ) Defendant's counsel also argued that ICE's failure to produce Defendant might violate the Speedy Trial Act. (Id. ) As a result of the issues raised by counsel, the Court ordered the parties to file briefs addressing: (1) whether a writ of habeas corpus ad prosequendum was consistent with the Bail Reform Act and whether such a writ would amount to the Court's exertion of custody over Defendant; (2) whether certain statutory and regulatory provisions allowed ICE to halt deportation for the benefit of criminal prosecution; (3) ICE's position relative to Defendant's custody, his anticipated removal from the United States, and its ability and willingness to transport him to Chattanooga, Tennessee, for trial; (4) whether the Court had the authority to enforce a writ of habeas corpus issued to the warden at the ICE facility that held Defendant; (5) the effect of Title 18, United States Code, Section 3142(d) on the proceedings; and (6) whether Defendant's Speedy Trial Act rights had been violated. (Id. ) The Court ordered Defendant's counsel to file a brief addressing these issues within ten days and ordered the Government to file its response brief within ten days of Defendant's filing. (Id. )
On June 27, 2019, Defendant's counsel filed a motion to dismiss, reasserting the same arguments made orally on June 24, 2019. (Doc. 59.) On July 1, 2019, the Government notified the Court that ICE had removed Defendant from the United States on June 28, 2019. On July 5, 2019, Defendant's counsel supplemented the motion to dismiss, addressing the issues the Court had ordered the parties to brief. (Doc. 60.) To date, by contrast, the Government has not responded to Defendant's motion to dismiss, and it has not briefed the issues the Court ordered it to address.
On August 5, 2019, the Court notified the parties that it would hold a telephonic status conference on August 7, 2019. On August 6, 2019, the Government filed a motion to dismiss Defendant's indictment. (Doc. 61.) As its basis for seeking dismissal, the Government's motion states:
On May 23, 2019, the Court ordered the defendant released pending trial. (R. 40, Order, 276-80.) Immigration and Customs Enforcement took custody of the defendant upon his release and, shortly thereafter, transported him to the LaSalle Processing Center in Jena, Louisiana, to complete administrative removal proceedings. (R. 52, Motion, 427-31.) ICE did not produce the defendant for trial on June 24, 2019 (R. 57, Minutes, 437), and removed him from the United States on June 28, 2019, by reinstatement of an Immigration Judge's order. The undersigned contacted ICE counsel regarding concerns expressed by the Court. Counsel for ICE agreed that,
after the defendant's removal from the United States, ICE considered this matter closed and would not respond to the Court's specific inquiries.
(Id. (emphasis added).) During the August 7, 2019 conference, the Court noted that the Government's motion failed to take a position on whether the Court should dismiss the indictment with or without prejudice. The Government responded only that it had discussed the issue internally and had decided to "remain silent" on the issue.
Defendant's counsel has thoughtfully briefed a motion to dismiss that raises serious questions about whether the Executive Branch's actions violated the Fifth Amendment, Sixth Amendment, and Speedy Trial Act. The Government has not responded to that motion. Defendant's counsel also went to the effort to draft twenty-seven well reasoned pages in response to the Court's order for additional briefing on issues the Court had to decide. By contrast, the Government has submitted nothing in response to the Court's order. And, finally, the Government has taken no position on the ultimate issue now to be decided in this case—whether the Court should dismiss the indictment with or without prejudice. As interesting and challenging as the merits of that question should be, the Government's disappearing act makes the Court's decision quite simple.
Local Rule 7.1 sets the briefing schedule for all motions filed within the Eastern District of Tennessee. In relevant part, Local Rule 7.1(a) provides that, "[u]nless the Court notifies the parties to the contrary, ... the answering brief and any accompanying affidavits or other material shall be served and filed no later than 14 days after the service of the opening brief, except that parties shall have 21 days in which to respond to dispositive motions." Additionally, Local Rule 7.2 provides that "[f]ailure to respond to a motion may be deemed a waiver of any opposition to the relief sought."
The Government has clearly waived any opposition to Defendant's motion. In summary, the Executive Branch secured an indictment of Defendant, took him outside this district so that he missed his trial date, and transported him to another country soon thereafter. Within that context, the Government stood silent in the wake of Defendant's motion, maintained that silence despite the Court's order to brief relevant issues, and now, after considered deliberation, remains silent as to the ultimate issue remaining in this case. It is difficult to imagine a more intentional example of waiver. Accordingly, Defendant's motion to dismiss (Doc. 59) is GRANTED and the indictment is DISMISSED WITH PREJUDICE. The Government's motion to dismiss the indictment (Doc. 61) is DENIED AS MOOT.
The Government's path in this case is in no way consistent with its typical practices before the Court. In fact, the particular Assistant United States Attorney representing the Government in this case—if left to his own devices—would be among the lawyers least likely to fail to respond to a dispositive motion or to ignore the Court's order. The Court can only attribute the Government's decisions to the Executive Branch's decision to favor ICE's interest in Defendant's deportation over the Government's interest in Defendant's prosecution. The Government's acknowledgement that ICE had no intention of responding to the Court's inquiries, that the Government could not arrange for Defendant's appearance at trial, and that a decision had been made to take no position on the appropriate type of dismissal further convinces the Court that the decisions to forego opportunities to advocate on behalf of the United States were calculated, thoughtful decisions made by the Executive Branch and not examples of simple carelessness. These were intentional, deliberate, and considered waivers.
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