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In Munoz-Garcia, the district court observed that “[a] court's decision to release a defendant pending trial despite the existence of an ICE detainer does not necessarily strip ICE of its authority to detain and remove an alien.
Summary of this case from United States v. Sanchez-VasquezOpinion
No. CR-19-01670-001-TUC-JGZ (EJM)
2020-04-21
UNITED STATES of America, Plaintiff, v. Maria MUNOZ-GARCIA, Defendant.
AMENDED ORDER
Before the Court is Magistrate Judge Eric Markovich's Report and Recommendation (R&R) recommending that the District Court enter an order granting Defendant's Motion to Dismiss the Indictment with Prejudice. (Doc 19.) The United States has filed an objection. (Doc. 22.) After an independent review of the parties’ briefing and of the record, the Court will overrule the Government's objection and adopt Judge Markovich's recommendation to dismiss the indictment with prejudice.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's Report and Recommendation, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis omitted). District courts are not required to conduct "any review at all ... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; see also 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72 ; Reyna-Tapia, 328 F.3d at 1121 ; Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003).
DISCUSSION
As set forth in the R&R, on May 30, 2019, Defendant Maria Munoz-Garcia was arrested and charged with Possession with Intent to Distribute Cocaine, Methamphetamine, Heroin, and Fentanyl in violation of 21 U.S.C. § 841. The Pretrial Services report recommended that Defendant be released on her own recognizance, noting that Defendant was a 58-year-old legal permanent resident who had resided in Arizona with her children for 30 years, with no criminal history. The report also noted that ICE had placed a detainer on Defendant. At Defendant's detention hearing on June 4, 2019, the Magistrate Judge adopted Pretrial Service's recommendation and ordered Defendant released on her own personal recognizance. Upon release from the custody of the U.S. Marshal, pursuant to the detainer, Defendant was turned over to ICE and transported to immigration custody. On July 10, 2019, Defendant was removed to Mexico. Defendant's arraignment, scheduled for July 12, 2019, was continued to July 26 to enable the parties to determine Defendant's whereabouts (Doc. 11), and then vacated when defense counsel confirmed that Defendant had been deported. (Doc. 12.) Defense counsel subsequently filed the pending Motion to Dismiss the Indictment with Prejudice. (Doc. 13.)
Dismissal of charges "is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available." United States v. Barrera-Moreno , 951 F.2d 1089, 1092 (9th Cir. 1991). "Guided by considerations of justice, and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury; and finally, as a remedy designed to deter illegal conduct." United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (internal citations and quotations omitted).
In the R&R, Magistrate Judge Markovich concluded that dismissal of the indictment with prejudice was warranted, because after Defendant was released pending trial under the Bail Reform Act (BRA), the Executive Branch was obliged to either abandon the criminal prosecution and proceed with removal, or stay removal and release the Defendant pending custody. By instead opting to proceed immediately with Defendant's removal, the R&R concluded, the United States government violated her statutory right to be released from custody under the BRA, as well as her Sixth Amendment right to counsel. The Government objects, arguing that the Immigration and Nationality Act (INA) authorizes the Department of Homeland Security to lawfully detain and remove a defendant who has been released pursuant to the BRA, without consequence in the government's criminal prosecution, and alternatively, that even if such a detention and removal does constitute a violation, dismissal of the indictment with prejudice is an unjustified consequence.
Under the BRA, a court may temporarily detain, for a period of not more than ten days, a person not lawfully admitted to the United States, and "direct the attorney for the Government to notify ... the appropriate official of the [Department of Homeland Security]. If the official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of [the BRA], notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." 18 U.S.C. § 3142(d). Outside of this provision, the court may not consider the existence of an ICE detainer when determining whether to release the defendant under conditions or detain the defendant pending trial. United States v. Santos-Flores , 794 F.3d 1088, 1092 (9th Cir. 2015) ; see also United States v. Diaz-Hernandez , 943 F.3d 1196, 1199 (9th Cir. 2019) ("a district court must conduct an individualized evaluation that is guided by the factors articulated at 18 U.S.C. § 3142(g). A defendant's immigration detainer is not a factor in this analysis, whether as evidence for or against a finding that the defendant poses a risk of nonappearance."). This is, in large part, because where the government "elect[s] to deliver [an] alien to the United States Attorney's Office for prosecution ... instead of removing [her] immediately," "the government may not use its discretionary power of removal to trump a defendant's right to an individualized determination under the Bail Reform Act." Santos-Flores , 794 F.3d at 1091.
The "Immigration and Naturalization Service," referenced in 18 U.S.C. § 3142(d), was abolished pursuant to the Homeland Security Act of 2002. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n. 2 (9th Cir. 2003). Immigration functions were transferred to the agencies within the newly-created Department of Homeland Security ("DHS") and to the Department of Justice ("DOJ"). Id.
A court's decision to release a defendant pending trial despite the existence of an ICE detainer does not necessarily strip ICE of its authority to detain and remove an alien. The Government highlights three out-of-circuit opinions that make this point, by way of arguing that, because ICE may execute a removal proceeding against a defendant out on bond, there is no BRA violation where ICE elects to do so. (Doc. 22 at 7-13.) That ICE may retain the authority to remove a defendant out on bond, however, does not necessarily mean that ICE may do so without consequence in the defendant's criminal prosecution—and none of the three cases relied upon by the Government compel a different conclusion. These cases merely hold that the court may lack "the authority to require the Executive to choose which laws to enforce" by issuing an order enjoining ICE from detaining or deporting a defendant. Soriano Nunez , 928 F.3d at 247 ; see also Veloz-Alonso , 910 F.3d at 270 ; Vasquez-Benitez , 919 F.3d at 553-54. "If the government," however, by placing a defendant "in immigration detention or removing [her], jeopardizes the district court's ability to try [her], then the district court may craft an appropriate remedy." Santos-Flores , 794 F.3d at 1091 ; see also United States v. Veloz-Alonso , 910 F.3d 266, 270 (6th Cir. 2018) ("One of the primary purposes of the BRA is to ensure the appearance of criminal defendants at judicial proceedings. To the extent that ICE may fulfill its statutory mandates without impairing that purpose of the BRA, there is no statutory conflict and the district court may not enjoin the government's agents.").
United States v. Vasquez-Benitez , 919 F.3d 546, 553 (D.C. Cir. 2019) ("ICE's authority to facilitate an illegal alien's removal from the country does not disappear merely because the U.S. Marshal cannot detain him under the BRA pending his criminal trial"); United States v. Soriano Nunez , 928 F.3d 240 (3rd Cir. 2019) (same); United States v. Veloz-Alonso , 910 F.3d 266 (6th Cir. 2018) ("the BRA's permissive use of release does not supersede the INA's mandatory detention" authority); see also United States v. Trujillo-Alvarez , 900 F. Supp. 2d 1167, 1176 (D. Or. 2012) ("[I]f the Executive Branch intends to exercise its ICE detainer for the purpose of removing and deporting Mr. Alvarez-Trujillo, it appears that it may well have the legal authority to do so.").
The Government cited a fourth case from the Second Circuit in a Notice of Supplemental Authority, United States v. Lett , 944 F.3d 467 (2d Cir. 2019), which adopted an analysis similar to those provided by the Third, Sixth, and D.C. Circuits.
The Government filed a Notice of Supplemental authority highlighting the Eighth Circuit's recent decision in United States v. Pacheco-Poo , 952 F.3d 950, 952 (8th Cir. 2020), in which the circuit affirmed the district court's denial of a motion to dismiss and concluded that "[t]he BRA and INA co-exist." The Court finds this case largely uninformative, however, because of a material factual distinction. In Pacheco-Poo , the defendant was also ordered released pretrial and taken into custody by ICE, but then pled guilty, preserving his appeal rights, and was sentenced before removal occurred. Here, Defendant is already gone. The Court, in this Order, does not address what the appropriate outcome would be in a case more factually analogous to Pacheco-Poo or to the other cases cited herein, where the basis for the motions to dismiss was simply that the defendants were detained by ICE after being ordered released prior to trial under the BRA.
Here, as a result of Defendant's removal, her rights under the Speedy Trial Act and relatedly, right to counsel, have been compromised. Pursuant to 18 U.S.C. § 3161(c)(1), Defendant must be tried within 70 days from the filing date of the information or indictment, or from the date Defendant first appeared before a judicial officer of the court, whichever occurs later. Here, Defendant appeared on May 31, 2019, and her indictment was returned on June 26, 2019. Seventy days have long since passed, and, given that the reason for her absence is removal by the government, none of the excludable grounds for delay under § 3161(h) appear to apply. See United States v. Resendiz-Guevara , 145 F.Supp.3d 1128, 1138 (M.D. Fla. 2015) ("any delay also caused by the pending motion also is a result of Defendant's deportation; and therefore such delay should not be excluded from the speedy trial calculation"). Moreover, defense counsel represents that he "has made repeated efforts to establish contact since [Defendant's] removal, all without success." (Doc. 27, pg. 9.) See United States v. Lutz , No. CR-19-692-1, 2019 WL 5892827, at *5 (D. Ariz. Nov. 12, 2019) (dismissing an indictment with prejudice where defendant was removed following release on bond because he was unable to consult with counsel). The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." U.S. Const. amend. VI. Without the ability to speak with Defendant, counsel is unable to investigate Defendant's case or to assess the viability of any defenses.
The Government argues that "defendant's removal to Mexico occurred with the defendant's consent," and notes that "[s]he did not seek to remain in the United States" and that "[s]he could have sought release from immigration custody if she could have shown she was not a flight risk," but instead told the immigration judge that she wanted to be deported to Mexico, "contrary to the conditions of release." (Doc. 22, pg. 20.) The implication, the Government argues, is that Defendant "was trying to get to Mexico to avoid criminal consequences," and that this negates any suggestion that Defendant was prejudiced. (Id. ) On the facts of this case, the Court cannot agree. The Defendant is not present to testify as to her intentions, and the Government has not provided sufficient evidence to persuade the Court that Defendant intended to evade criminal charges by failing to resist a removal proceeding that the executive branch itself initiated against Defendant, rather than that she was confused as to the purpose of her continued detention after the Magistrate Judge's release order, or that she, in fact, sincerely desired medical treatment and saw no alternative other than to be sent to Mexico to get it, notwithstanding that she had lived in the United States for over 30 years with her children. The record does not reflect that Defendant was in communication with her counsel to understand the purpose behind the removal proceedings or the way in which those proceedings intersected with the criminal proceedings against her. In short, the Court concludes that here, counsel's inability to assist with Defendant's defense is result of the Government's decision to remove Defendant following the Magistrate Judge's release order, rather than of Defendant's own volitional act. See United States v. Ailon-Ailon , 875 F.3d 1334, 1339 (10th Cir. 2017) ("We hold that, in the context of § 3142(f)(2), the risk that a defendant will ‘flee’ does not include the risk that ICE will involuntarily remove the defendant."); see also Santos-Flores , 794 F.3d at 1091 ("As a number of district courts have persuasively explained, the risk of nonappearance referenced in 18 U.S.C. § 3142 must involve an element of volition.").
Notably, the United States fails to press the fact that in Defendant's removal proceeding, the immigration "judge asked [the] attorney for the government if there were criminal charges pending [against Defendant], to which the attorney responded that she was not sure." (Doc. 17, pg. 3.)
The Magistrate Judge concluded that dismissal with prejudice was appropriate largely because "the government violated the defendant's statutory right to be released from custody under the Bail Reform Act when it chose not to comply with the court's release order and continued to detain the defendant pending trial." (Doc. 19, pg. 7.) This Court adopts the R&R's ultimate recommendation for dismissal because of the prejudice stemming from Defendant's actual removal. As previously stated, whether DHS does or does not have authority under the INA to detain a person for removal proceedings after that person has already been released under the BRA, and whether the United States Attorney's Office does or does not always have the authority or the effective ability to intervene in order to halt a removal proceeding, the fact remains that in this case, as a result of executive branch operation, the Defendant has been deported and is consequently disadvantaged in preparing a defense in her case, jeopardizing this Court's ability to fairly try her.
CONCLUSION
Accordingly,
IT IS ORDERED that the Report and Recommendation (Doc. 19) is ADOPTED.
IT IS FURTHER ORDERED that the Motion to Dismiss the Indictment (Doc. 13) is GRANTED. The Indictment (Doc. 8) is dismissed with prejudice. The Clerk of the Court is directed to close this case.
REPORT AND RECOMMENDATION
Eric J. Markovich, United States Magistrate Judge
The instant Motion to Dismiss the Indictment illustrates a tension between two Executive Branch agencies. The Executive, through the United States Attorney's Office, wanted to prosecute the defendant, and the same Executive, through the Department of Homeland Security, wanted to deport her. The defendant was ordered released pending trial under the Bail Reform Act. The Executive Branch violated that order by continuing to detain the defendant during her immigration removal proceedings, and then made her both unavailable for trial and unable to consult with counsel by removing her from the United States. As a result of these violations, it is recommended that the District Court grant the defendant's Motion to Dismiss the Indictment with prejudice.
FACTUAL BACKGROUND
On May 30, 2019, the defendant, Maria Munoz-Garcia, was arrested and charged in a criminal complaint with Possession with Intent to Distribute Cocaine, Methamphetamine, Heroin, and Fentanyl, in violation of 21 U.S.C. § 841. She had her initial appearance the following day and her detention hearing on June 4, 2019. Magistrate Judge Rateau adopted the recommendation of Pretrial Services and ordered the defendant released on her personal recognizance. However, the defendant, who was a Legal Permanent Resident, was turned over to the custody of ICE agents pursuant to an immigration detainer. The Executive Branch instituted removal proceedings against the defendant. The defendant remained in immigration custody during the pendency of the removal proceedings. On or about July 10, 2019, the defendant was removed to Mexico.
The defendant was subsequently charged in an Indictment with the following offenses: 21 U.S.C. §§ 846, 841, 963 and 952 ; Conspiracy to Possess with Intent to Distribute, Possession with Intent to Distribute, Conspiracy to Import, and Importation of Cocaine, Fentanyl, Heroin and Methamphetamine.
The defense filed a Motion to Dismiss the Indictment arguing that the removal of the defendant violated her rights under the United States Constitution, the Speedy Trial Act, and the Bail Reform Act. (Doc. 13 at 2.) The defense requests that this Court exercise its supervisory powers and dismiss the Indictment with prejudice as a result of these violations. Specifically, the defense argues that taking the defendant into immigration custody violated the Bail Reform Act because she was ordered released pending trial. (Id. at 3.) The defense also argues that the defendant's detention in immigration custody and her removal from the United States denied her "the ability to meet with counsel or to prepare a defense in her case, thus violating the Fifth and Sixth Amendments." (Id. ) Finally, the defense also argues that the defendant's removal from the United States violates the Speedy Trial Act.
The government argues that the Indictment should not be dismissed because the defendant "did nothing to prevent her removal. In fact, she invited it." (Doc. 17 at 3.) The government argues that the defendant became a voluntary flight risk when she "voluntarily gave up her permanent legal resident status" and "requested immediate deportation." (Id. at 5.) The government claims that the defendant "could have put the brakes on the rapidity of her deportation and, possibly, even been released back into the United States." (Id. at 3.) More specifically, the government submits that the defendant could have asked for an attorney, requested to stay in the United States, denied the allegations, informed the immigration court that she had a criminal case pending, and asked for time to appeal the immigration judge's decision. (Id. ) Because she did none of these things, and instead requested her immediate removal, the government argues that the defendant sought "to avoid the present criminal prosecution for drug trafficking." (Id. at 4.)
DISCUSSION
Dismissal of criminal charges "is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available." United States v. Barrera-Moreno , 951 F.2d 1089, 1092 (9th Cir. 1991). "Guided by considerations of justice, and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury; and finally, as a remedy designed to deter illegal conduct." United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).
In assessing whether dismissal of the Indictment is proper, the Court first turns to a discussion of the conflict that has emerged in the application of the Bail Reform Act ("BRA") and Immigration and Nationality Act ("INA") by two separate departments within the Executive Branch: the Department of Justice and the Department of Homeland Security. The Ninth Circuit has thoroughly analyzed and resolved that conflict in United States v. Santos-Flores , 794 F.3d 1088, 1091 (9th Cir. 2015). In that case, the Ninth Circuit made clear what has been clear in many other Circuits and/or Districts throughout the country, that is, the possibility of a criminal defendant's removal from the United States under the INA is not, in and of itself, a basis to detain the defendant under the Bail Reform Act.
Indeed, this was the law in the Ninth Circuit prior to Santos-Flores , although that court addressed this issue in a short unpublished opinion. See United States v. Castro-Inzunza , 2012 WL 6622075 (9th Cir. 2012). Id.
The Ninth Circuit first noted that Congress chose not to exclude removable aliens from consideration for release in criminal proceedings. Santos-Flores , 794 F.3d at 1090. Rather, 18 U.S.C. § 3142(d) provides that when a court determines that a defendant is not a citizen of the United States or lawfully admitted for permanent residence and that the defendant may flee or pose a danger, the court shall order temporary detention for not more than ten days and direct the government to notify "the appropriate official of the Immigration and Naturalization Service." 18 U.S.C. § 3142(d). "A determination that the alien may flee or pose a danger – voluntary acts – is required to impose even this temporary detention." Santos-Flores , 794 F.3d at 1091. If immigration authorities do not take custody of the defendant during this ten-day period, Congress directs the court to treat the defendant in accordance with other provisions in the Bail Reform Act, "notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." Id. (quoting 18 U.S.C. § 3142(d) ).
The Santos-Flores court reasoned that "[r]einstatement of a prior order of removal is neither automatic nor obligatory." 794 F.3d at 1091. Immigration officials may decide to forego reinstatement for a variety of reasons, including the exercise of prosecutorial discretion. Id. Indeed, the "government may also exercise its judgment that the public interest in criminally prosecuting an alien is greater than the public interest in swiftly removing him." Id. However, if the government makes the choice to deliver the alien to the United States Attorney's Office for prosecution instead of removing him immediately, "the government may not use its discretionary power of removal to trump a defendant's right to an individualized determination under the Bail Reform Act." Id.
In United States v. Trujillo-Alvarez , 900 F. Supp.2d 1167, 1178-79 (D. Or. 2012), a case cited and relied upon in Santos-Flores , the district court addressed the consequences the government would face if it failed to comply with an order releasing a defendant under the Bail Reform Act. That court first made clear that when there is a criminal prosecution pending, the Bail Reform Act takes precedence over the Immigration and Nationality Act. The court came to this conclusion for two related reasons. First, the court explained that under the INA when an alien is subject to a removal order, "the Executive Branch ‘shall remove the alien from the United States within a period of 90 days.’ " ("the removal period") Trujillo-Alvarez , 900 F. Supp. 2d at 1174 (citing 8 U.S.C. § 1231(a)(1)(A) ). That removal period only begins to run on the latest of the following: (1) the date the order of removal becomes administratively final; (2) if the removal order is judicially reviewed and if a court orders a stay of removal, the date of the court's final order; or (3) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. Id. (citing 8 U.S.C. § 1231(a)(1)(B) ). The court reasoned that, under subsection three, the 90-day removal period had not yet commenced because "a person who has been released subject to conditions of pretrial supervision is still ‘confined’ because they are subject to restraints not shared by the public generally that significantly confine and restrain their freedom." Id. at 1175. Thus, the court concluded that "there is no legal requirement, or even any practical necessity, that ICE detain [the defendant] in order to remove and deport him before the pending criminal proceedings can be concluded." Id.
Second, the court found that two regulations issued under the authority of the INA demonstrated the Executive Branch's determination that criminal prosecutions should take priority over removal and deportation. Id. at 1178-79. The first regulation provides that "[n]o 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." Id. at 1178 (quoting 8 C.F.R. § 215.2(a) ). The second regulation says that the departure of any alien shall be "deemed prejudicial to the interests of the United States" if, among other reasons, the alien is a party to "any criminal case." Id. at 1179 (quoting 8 C.F.R. § 215.3(g) ). The court reasoned that these INA regulations evidence that when a criminal case is pending against a defendant alien, the criminal proceeding takes precedence over the alien's removal, and these regulations are "fully consistent with the statutory provisions of the INA." Id.
The court further found, like the Ninth Circuit in Santos-Flores , that in the Bail Reform Act itself "Congress explained how to reconcile the release and detention provisions of that statute with the administrative deportation provisions of the INA." Id. If a court determines that a criminal defendant has no legal status to be in the United States and may flee, the court may temporarily detain the defendant for up to ten days to allow immigration authorities to take custody of the defendant and commence removal proceedings. Id. (citing 18 U.S.C. § 3142 ). If the immigration authorities decline to take custody of the defendant, then the court treats the alien defendant like any other defendant under the Bail Reform Act, without regard to the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings. Id. Thus, if Congress wanted to bar aliens with immigration detainers from eligibility for release under the Bail Reform Act, it could have readily done so, but it did not. Id.
The court explained that the Executive Branch had a choice to make, and it basically had two options: remove the defendant from the United States or face dismissal of the criminal charges:
If the Executive Branch chooses not to release the Defendant and instead decides to abandon criminal prosecution of the pending charge and proceed directly with Defendant's removal and deportation, the law allows the Executive Branch to do that. If, however, the Defendant is not released pending trial as directed by the Magistrate Judge pursuant to the BRA, the pending criminal prosecution of the Defendant may not go forward. To hold otherwise would deprive the Defendant of his statutory right to pretrial release under the Bail Reform Act and possibly even deprive the Defendant of his Fifth Amendment and Sixth Amendment rights to due process and effective assistance of counsel, respectively.
Id. at 1170. The court concluded that there is not a third option because "[w]hat neither ICE nor any other part of the Executive Branch may do ... is hold someone in detention for the purpose of securing his appearance at a criminal trial without satisfying the requirements of the BRA." Id. at 1179.
In the case at hand, notwithstanding the Magistrate Judge's Order that the defendant be released from custody pending her trial, the Executive Branch chose to transfer the defendant to the custody of immigration authorities pursuant to the immigration detainer. As a result, the Executive Branch, like in Trujillo-Alvarez , had another choice to make: (1) abandon criminal prosecution of the pending charges and proceed directly with the defendant's removal and deportation; (2) not immediately proceed with removal proceedings and release the defendant from custody as ordered by the Magistrate Judge; or (3) stay the removal proceedings or any resulting removal order through coordination between the two agencies of the Executive Branch, and release the defendant from custody pending her criminal trial. However, "[w]hat neither ICE nor any other part of the Executive Branch may do ... is hold someone in detention for the purpose of securing [her] appearance at a criminal trial without satisfying the requirements of the BRA." Trujillo-Alvarez , 900 F. Supp. 2d at 1179.
The government chose to proceed with the defendant's removal proceeding and deport her from the United States. The result of that choice is that the government abandoned the criminal prosecution. The fact that the defendant, in the government's view, did not sufficiently contest her removal from the United States is irrelevant to the analysis of whether the criminal charges should be dismissed. Indeed, the government's argument that the defendant became a voluntary flight risk when she essentially agreed to her removal is ironic given that the defendant should not have been in custody to begin with. Similarly ironic is the notion that the defendant had the ability "to put the brakes on the rapidity of her deportation" and perhaps could have been released back into the United States. The government knows very well that even if the defendant had more vigorously fought her removal, she would have remained in immigration custody, even though she was ordered released pending trial under the Bail Reform Act. It was the government's obligation, not the defendant's (who had no right to counsel), to let the immigration court know that the defendant was facing criminal charges and was ordered released pending trial on those charges. Rather than doing so, the government chose to ignore the release order and remove the defendant from the United States.
Simply stated, the government violated the defendant's statutory right to be released from custody under the Bail Reform Act when it chose not to comply with the court's release order and continued to detain the defendant pending her trial. This Court cannot and will not "run interference for the prosecuting arm of the government" based on the choice the Executive Branch made in this case. Trujillo-Alvarez , 900 F. Supp. 2d at 1180 (quoting Barrera-Omana , 638 F. Supp. 2d. 1108, 1111-12 (D. Minn. 2009) ). Moreover, the "[d]efendant's deportation presents a clear challenge ... to [her] ability to consult with counsel, to review the evidence against [her] and to prepare a defense to the charge.... This constitutes a violation of [her] Sixth Amendment right to counsel." United States v. Resendiz-Guevara , 145 F.Supp.3d 1128, 1138 (M.D. Fla. 2015). The result of those violations should be a dismissal of the criminal charges with prejudice.
For those reasons, it is recommended that the Indictment against the defendant be dismissed with prejudice.
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR 19-01670-TUC-JGZ.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.
DATED this 25th day of September, 2019.