Opinion
Criminal Action No. 3:18-cr-37 (CAR)
2019-04-19
UNITED STATES of America, v. Manual HERNANDEZ-OLEA, Defendant.
Amelia G. Helmick, United States Attorney's Office, Columbus, GA, Michael T. Solis, Kimberly S. Easterling, Lindsay Bozicevich Feinberg, Michelle Schieber, United States Attorneys Office, Macon, GA, for United States of America.
Amelia G. Helmick, United States Attorney's Office, Columbus, GA, Michael T. Solis, Kimberly S. Easterling, Lindsay Bozicevich Feinberg, Michelle Schieber, United States Attorneys Office, Macon, GA, for United States of America.
ORDER DISMISSING INDICTMENT WITHOUT PREJUDICE
C. ASHLEY ROYAL, SENIOR JUDGE
Currently before the Court are Defendant's Motion to Dismiss the Indictment with prejudice and the Government's Motion to Dismiss the Indictment without prejudice. For the reasons expressed below, the Court GRANTS the Government's Motion [Doc. 56], DENIES Defendant's Motion [Doc. 55], and DISMISSES the Indictment against Defendant Manual Hernandez-Olea WITHOUT PREJUDICE .
BACKGROUND
Defendant is a citizen and national of Mexico. On February 4, 2006, Immigration and Customs Enforcement ("ICE") issued Defendant an I-860 Notice and Order of Expedited Removal. He was removed from the United States the next day. Defendant subsequently reentered the United States. On May 3, 2018, he was apprehended when an ICE Fugitive Operations Unit encountered him in Oconee County, Georgia. Defendant admitted he did not have a driver's license and had only a Mexican ID. Defendant was taken into custody and held in the Atlanta field office for further processing. ICE reinstated Defendant's order of removal that same day.
On June 12, 2018, a federal grand jury indicted Defendant on one count of Illegal Reentry. On June 20, 2018, he entered a plea of not guilty at his arraignment. The Court detained Defendant. Defendant appealed the order of detention, and the Eleventh Circuit Court of Appeals granted his motion for release pending trial and remanded the case. On December 3, 2018, the United States Magistrate Judge ordered Defendant released. The following day, ICE, acting under the jurisdiction of the Department of Homeland Security ("DHS"), executed its detainer, took Defendant into custody for the purpose of removal to Mexico, and ultimately deported Defendant to Mexico on December 17, 2018. Thereafter, the parties filed the current Motions to Dismiss the Indictment.
ANALYSIS
In this case, no one disputes that the Court will dismiss the indictment against Defendant. The only question is whether the dismissal will be with or without prejudice. Defendant argues the Court should dismiss the indictment with prejudice because continuing prosecution after deportation violates Defendant's constitutional rights to due process under the Fifth Amendment and to counsel under the Sixth Amendment, and violates his statutory rights under the Bail Reform Act, 18 U.S.C. § 3142 ("BRA"), the Immigration and Nationality Act, 8 U.S.C. § 1231 ("INA"), and the Speedy Trial Act, 18 U.S.C. § 3161. The Government agrees the indictment should be dismissed, but it seeks to dismiss the indictment without prejudice pursuant to Federal Rule of Criminal Procedure 48(a) due to Defendant's removal.
DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE
As an initial matter, this Court has identified no Eleventh Circuit case addressing the standard for dismissal where a defendant is deported during active criminal proceedings. Under this Circuit's general rule, dismissal with prejudice is an "extreme sanction" that the district court can impose "only in extraordinary circumstances." Such extraordinary circumstances include misconduct by the government but only if that misconduct actually prejudiced the defendant. The Supreme Court has held that it is "plainly inappropriate" for a district court to dismiss an indictment with prejudice even where the government may have deliberately violated a defendant's constitutional rights, unless there has been "demonstrable prejudice" —"some adverse effect upon the effectiveness of counsel's representation or [ ] some other prejudice to the defense." Unless Defendant can show an actual prejudice or adverse impact, dismissal without prejudice is appropriate. And "[d]ismissal without prejudice is not a toothless sanction: it forces the Government to obtain a new indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on statute of limitation grounds."
United States v. Campagnuolo , 592 F.2d 852, 865 (5th Cir. 1979) (see Bonner v. Prichard , 661 F.2d 1206 (11th Cir. 1981) (en banc ) adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).
Id.
United States v. Morrison , 449 U.S. 361, 366-67, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) ("absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment [with prejudice] is plainly inappropriate, even though the violation may have been deliberate.")
Id. at 365, 101 S.Ct. 665 (even assuming a Sixth Amendment violation occurred based upon "egregious behavior of the agents," the Supreme Court held dismissal of the indictment with prejudice was improper because there were no allegations the claimed behavior had any adverse impact on Defendant's legal position. The Court also noted that "[t]his has been the result reached where a Fifth Amendment violation has occurred.").
United States v. Taylor , 487 U.S. 326, 342, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988).
Constitutional Arguments
Defendant argues that when the Government, through ICE, deported Defendant, it violated his Fifth Amendment right to due process and his Sixth Amendment right to counsel, and these violations warrant dismissal of his indictment with prejudice. The Court disagrees. First, Defendant has failed to show that any Fifth or Sixth Amendment violation has occurred here. Defendant's arguments are based on the erroneous contention that the Government will continue to prosecute Defendant while he is in Mexico. This is clearly not the case, as the Government seeks to dismiss Defendant's indictment without prejudice. Moreover, even if this Court assumes such violations occurred, Defendant has failed to show how any violation has had an adverse impact or prejudice on Defendant or his criminal case to warrant the extreme sanction of a dismissal with prejudice.
Statutory Arguments
Defendant also argues that the Court should dismiss Defendant's indictment with prejudice because deporting Defendant while his criminal case remains pending violates the Speedy Trial Act, the INA, and the BRA. Again, the Court disagrees.
The Speedy Trial Act
First, no violation of the Speedy Trial Act has occurred, or will occur, in this case. Under § 3161(c)(1) of the Speedy Trial Act, a defendant must be tried on the charges in the indictment within 70 days from the later of either the filing date of the indictment or the defendant's initial appearance before a judicial officer of the court in which the charges are pending. As set forth in § 3161(h), certain periods of time, such as delays resulting from pretrial motions and interlocutory appeals, are not counted for purposes of computing either of those time limits.
Defendant contends his speedy trial rights will "inevitably be violated." The periods of delay in bringing this case to trial, however, have been caused by multiple pretrial motions and an interlocutory appeal, all of which are excluded in computing the time within which trial should commence. Excluding those times, no speedy trial violations have occurred, nor will they occur in this case, as the indictment will be dismissed.
See 18 U.S.C. § 3161(h)(1)(C)-(D).
The Immigration and Naturalization Act
Defendant argues ICE was not authorized to deport Defendant under the INA. The INA requires ICE to detain and deport illegal aliens like Defendant who have reentered the United States after a final deportation order. The INA provides that if DHS
finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5) (emphasis added).
An alien must be removed within the 90-day removal period, which starts on the latest of (1) "[t]he date the order of removal becomes administratively final, (2) the date of an appellate court's final order if the removal is stayed, or, the provision pertinent to this case, (3) [i]f the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. " Defendant first argues the statutory phrase "released from detention or confinement" means release from incarceration pursuant to a final judgment of conviction, not pretrial release; thus, because Defendant was on pretrial release, the 90-day removal period had not begun, and ICE was not authorized to remove him. This Court is unconvinced.
8 U.S.C. § 1231(a)(1)(B) (emphasis added).
"The starting point for all statutory interpretations is the language of the statute itself." Courts should "assume that Congress used the words in a statute as they are commonly and ordinarily understood, and [ ] read the statute to give full effect to each of its provisions." "Released from detention or confinement" is not ambiguous; it means when the alien is released—pre-trial, post-trial, or post-judgment. The Court cannot write the "pursuant to final judgment" language Defendant seeks to include in the statute. The "absence of legislative language restricts our interpretation, as we are not allowed to add or subtract words from a statute. Because our task is merely to apply statutory language, not to rewrite it."
United States v. DBB, Inc. , 180 F.3d 1277, 1281 (11th Cir. 1999).
Id.
Houston v. Marod Supermarkets, Inc. , 733 F.3d 1323, 1334 (11th Cir. 2013) (citation and quotation marks omitted).
Next, Defendant argues immigration officials violated existing INA Regulations by removing Defendant while his criminal case remains pending. Defendant points to 8 C.F.R. §§ 215.2(a) which provides that "no alien shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the provisions of § 215.3..." Under § 215.3(g), "[t]he departure from the United States of any alien ... shall be prejudicial to the interests of the United States" where the alien "is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States...." These regulations, however, are "directed at the conduct of aliens, barring them from leaving, not directed at ICE, barring it from deporting aliens." Thus, they are inapplicable to this case.
United States v. Pacheco-Poo , 2018 WL 6310270, *6 (N.D. Iowa Dec. 3, 2018).
The Bail Reform Act
Unlike the INA's mandatory detention provisions, the BRA permits the release of illegal aliens before final judgment. Defendant's remaining argument is premised on the theory that the Government must choose between prosecution or removal; it cannot pursue both. Once the Government determines it will seek prosecution, the BRA, not the INA, controls, and the Government must abide by all the rulings in criminal proceedings, including the Court's Order granting pretrial release under the BRA. Because the INA no longer controls, deportation is improper. Although some courts have found this reasoning persuasive, this Court does not. Instead, this Court agrees with the Sixth Circuit that there is no conflict between the permissive release provisions of the BRA and the mandatory provisions of the INA; thus, no violation of the BRA occurs when the government deports a defendant under the INA during an active criminal case.
See 18 U.S.C. § 3142 ; United States v. Manual Hernandez-Olea , Order of Remand issued as the mandate from Eleventh Circuit Court of Appeals, Appeal No. 18-13744-EE, District Court Case No. 3:18-CR-37 [Doc. 50] (granting motion for release pending trial and remanding case to this Court with instructions for release).
See, e.g. , United States v. Trujillo-Alvarez , 900 F. Supp. 2d 1167 (D. Or. 2012) ; United States v. Blas , 2013 WL 5317228 (S.D. Ala. 2013) ; United States v. Boutin , 269 F. Supp. 3d 24 (E.D.N.Y. 2017) ; United States v. Rangel , 318 F. Supp. 3d 1212 (E.D. Wash. 2018).
See United States v. Veloz-Alonso , 910 F.3d 266, 270 (6th Cir. 2018).
Using the Sixth Circuit's reasoning, "reading the BRA's permissive use of release to supersede the INA's mandatory detention does not follow logically nor would doing so be congruent with our canons of statutory interpretation." It has long been established under statutory interpretation rules that "when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly express congressional intent to the contrary, to regard each as effective[.]" This Court agrees with the Sixth Circuit that "nothing in the BRA prevents other government agencies or state or local law enforcement from acting pursuant to their lawful duties." ICE was obligated under the INA to detain and remove Defendant after his release from pretrial detention. Its actions in fulfilling its mandatory duties under the INA do not violate the BRA or this Court's pretrial release Order; thus, the actions do not provide a reason for dismissal of the indictment with prejudice.
Id. at 270.
Id. at 268, 270.
Id. at 269.
GOVERNMENT'S MOTION TO DISMISS WITHOUT PREJUDICE
Having determined that the "extreme sanction" of dismissing Defendant's indictment with prejudice is not warranted, the Court now turns to the Government's request to dismiss the indictment without prejudice pursuant to Federal Rule of Criminal Procedure 48(a). Federal Rule of Criminal Procedure 48(a) provides in relevant part that "the government may, with leave of court, dismiss an indictment...." Although the Court must ultimately decide whether to grant the Government's request, "[t]he Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated." Indeed, "[t]he exercise of [the Government's] discretion with respect to the termination of pending prosecutions should not be disturbed unless clearly contrary to manifest public interest," and the Government is entitled to a presumption of good faith.
United States v. Cowan , 524 F.2d 504, 512 (5th Cir. 1975).
Id.
United States v. Dyal , 868 F.2d 424, 428 (11th Cir. 1989).
Here, the Government seeks dismissal because Defendant has been deported to Mexico. No showing has been made that the Government is acting in bad faith, and the court finds it is in the interest of justice to grant the Government's request to dismiss Defendant's indictment without prejudice.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Government's Motion [Doc. 56], DENIES Defendant's Motion [Doc. 55], and DISMISSES the Indictment against Defendant Manual Hernandez-Olea WITHOUT PREJUDICE .
SO ORDERED , this 19th day of April, 2019.