Opinion
CR-20-2239-TUC-JGZ (BGM)
06-23-2021
United States of America, Plaintiff, v. Jorge Mario Sanchez-Vasquez, Defendant.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court is Defendant Jorge Mario Sanchez-Vasquez's Motion to Dismiss Indictment with Prejudice for Violation to Defendant's Sixth Amendment Rights (Doc. 18). The Government has filed its response and Defendant did not reply. Govt.'s Response to Def.'s Mot. to Dismiss (Doc. 32). Defendant Jorge Mario Sanchez-Vasquez is charged with one (1) count of conspiracy to possess with intent to distribute methamphetamine; one (1) count of possession of methamphetamine with intent to distribute; one (1) count of conspiracy to import methamphetamine; and importation of methamphetamine. Indictment (Doc. 3).
Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On April 26, 2021, oral argument was held before Magistrate Judge Macdonald, and the matter taken under advisement. Minute Entry 4/26/2021 (Doc. 48). The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion and dismiss this matter without prejudice.
I. BACKGROUND
“On May 23, 2020, Jorge Mario Sanchez-Vasquez presented himself for entry to the United States through the DeConcini Port of Entry (POE) in Nogales, Arizona.” Compl. (Doc. 1). Upon referral to secondary, agents discovered fifty-five (55) packages of methamphetamine concealed in the vehicle Mr. Sanchez-Vasquez was driving. Id. Mr. Sanchez-Vasquez was detained. See id.
On May 28, 2020, Mr. Sanchez-Vasquez's family contacted Ms. Sabrina Perez-Arleo, Esq. to assist with his immigration case. Def.'s Exh. “61” at ¶ 5. Mr. Sanchez-Vasquez was being detained in United States Immigration and Customs Enforcement (“ICE”) custody at the Winn Corrections Center in Louisiana. Id. at ¶ 6. Ms. Perez-Arleo found a Notice to Appear was presented on May 23, 2020. Id. at ¶ 21; see also Def.'s Exh. “51.” On June 24, 2020, a Legally Sufficiency Review indicated the Notice to Appear (“NTA”) was legally insufficient and rejected. Def.'s Exh. “52.” On July 18, 2020, Ms. Perez-Arleo attempted to file a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court, but it was rejected because there was no case pending against Mr. Sanchez-Vasquez. Id. at ¶ 8. Despite repeated efforts, Ms. Perez-Arleo was unable to contact Mr. Sanchez-Vasquez while he was held in Louisiana. See Id. at ¶¶ 7-15. On October 7, 2020, another Notice to Appear was issued, but again did not include a date or time. Def.'s Exh. “55” at 1.
Mr. Sanchez-Vasquez is a citizen of Guatemala, previously granted Legal Permanent Resident status in the United States by a U.S. immigration agency. See id. On October 22, 2020, Mr. Sanchez-Vasquez was charged in a criminal complaint in this matter. See Compl. (Doc. 1). On October 28, 2020, Mr. Sanchez-Vasquez was indicted by a grand jury and charged with conspiracy, possession, and possession with intent to distribute methamphetamine. Indictment (Doc. 3). On October 29, 2020, Mr. Sanchez-Vasquez was arrested and transferred out of ICE custody. See Def.'s Exh. “61” at ¶ 17; United States v. Sanchez-Lopez, Docket Sheet, No. 1:20-mj-00130-JPM (W.D. La. Oct. 29, 2020); see also Def.'s Exh. “57.” On October 30, 2020, Mr. Sanchez-Vasquez
received his initial appearance before Magistrate Judge Perez-Montes in the Western District of Louisiana. See United States v. Sanchez-Lopez, Docket Sheet, No. 1:20-mj-00130-JPM (W.D. La. Oct. 30, 2020). On November 4, 2020, Mr. Sanchez-Vasquez was committed to the District of Arizona. See Id. On December 22, 2020, Mr. Sanchez-Vasquez had an initial appearance and arraignment before Magistrate Judge Markovich in the District of Arizona. Minute Entry 12/22/2020 (Doc. 11). On December 24, 2020, Magistrate Judge Macdonald held a detention hearing and ordered Mr. Sanchez-Vasquez released under certain conditions. Minute Entry 12/24/2020 (Doc. 13); see also Order Setting Conditions of Release (Doc. 14).
Mr. Sanchez-Vasquez was returned to ICE custody. On January 27, 2021, another Notice to Appear was issued directing Mr. Sanchez-Vasquez to appear on February 21, 2021 for an immigration hearing. Def.'s Exh. “58.” On February 24, 2021, Mr. Perez-Arleo filed her Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court. Def.'s Exh. “59.” On April 22, 2021, a Notice of Hearing in Removal Proceedings in Immigration Court was issued directing Mr. Sanchez-Vasquez to appear at his MASTER hearing before the immigration court on May 13, 2021. Def.'s Exh. “60.” Currently, Mr. Sanchez-Vasquez's MASTER hearing is scheduled for August 25, 2021.
The Court called the Executive Office for Immigration Review (EOIR) electronic telephone system at (800) 898-7180 to obtain this information. See also EOIR Automated Case Information, available at https://portal.eoir.justice.gov/InfoSystem/Form?Language=EN. The Court was unable to independently confirm where Mr. Sanchez-Vasquez is detained because a query of his A-Number returned zero (“0”) results. See ICE Online Detainee Locator System, available at https://locator.ice.gov/odls/#/index.
II. ANALYSIS
Mr. Sanchez-Vasquez seeks dismissal of this cause of action because his detention at the Eloy Immigration Detention Center, coupled with COVID-19 restrictions, impede confidential communication with his attorney in this case and hindering Mr. Sanchez-Vasquez's ability to assist in his own defense. Def.'s Mot. to Dismiss (Doc. 18) at 8.
The Government argues that the Department of Homeland Security (“DHS”) lawfully detained Mr. Sanchez-Vasquez for immigration purposes under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a)(1), and emphasized that the other circuits which have considered the issue have found that pretrial release pursuant to the Bail Reform Act (“BRA”) does not preclude pre-removal detention under the INA. Govt's Response (Doc. 32) at 4 (reviewing appellate cases).
“This case involves a tension between lawful release orders under the [BRA] and actions taken by ICE under the [INA].” United States v. Lutz, No. CR-19-00692-TUC-RM (BGM), 2019 WL 5892827, at *2 (D. Ariz. Nov. 12, 2019). Prior cases in the District of Arizona addressing this tension have involved Defendants who were removed prior to trial. See, e.g., United States v. Escobar-Mariscal, No. CR-19-2777-001-TUC-RM (DTF), 2020 WL 4284406 (D. Ariz. July 27, 2020); United States v. Munoz-Garcia, 455 F.Supp.3d 915 (D. Ariz. 2020); United States v. Castro-Guzman, No. CR-19-2992-TUC-CKJ (LCK), 2020 WL 3130395 (D. Ariz. May 11, 2020), adopted by 2020 WL 3130397 (D. Ariz. June 1, 2020); Lutz, 2019 WL 5982827; United States v. Laurean-Lozoya, No. CR-18-0700-TUC-RM (BGM), 2018 WL 5928169 (D. Ariz. Oct. 23, 2018), adopted by 2018 WL 5924181 (Nov. 13, 2018). 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.” Munoz-Garcia, 455 F.Supp.3d at 919. The court further noted although “ICE may retain the authority to remove a defendant out on bond, . . . [that] does not necessarily mean that ICE may do so without consequence in the defendant's criminal prosecution[.]” Id. (emphasis in original). “‘If the government,' however, by placing a defendant ‘in immigration detention or removing [him], jeopardizes the district court's ability to try [him], then the district court may craft an appropriate remedy.'” Id. (quoting United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015)).
The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. At the evidentiary hearing, defense counsel consistently reiterated that she has been unable to effectively communicate with her client. The Government insists that the access that counsel has is constitutionally sufficient. The Court is troubled by counsel's inability to have meaningful, private contact with her client. “[I]t is not the p[]erogative of the prosecution or ICE to dictate how Defendant is able to consult with his attorney.” Lutz, 2019 WL 5892827, at *5. Furthermore, Counsel's inability to speak with her client also hampers her ability to investigate Mr. Sanchez-Vasquez's case or assess the viability of any defenses. See Munoz-Garcia, 455 F.Supp.3d at 920.
The Court is also troubled by ICE's custody of Mr. Sanchez-Vasquez for months prior to the onset of this criminal case, without initiating removal proceedings. Yet, once the criminal case began and Mr. Sanchez-Vasquez was released pre-trial, ICE re-incarcerated him and began the removal process. “The fact that ICE will not agree or cannot be trusted to delay deportation-that separate agencies within the Executive Branch do not communicate and cooperate-cannot serve to deprive a defendant of his rights under the Constitution.” Lutz, 2019 WL 5892827, at *5 (quotations and citations omitted).
A Notice to Appear that does not specify the time and place of the removal proceedings is not sufficient for purposes of 8 U.S.C. § 1229(a). See United States v. Erazo-Diaz, 353 F.Supp.3d 867, 872 (D. Ariz. 2018).
“Dismissal 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 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).
Mr. Sanchez-Vasquez continues to suffer a violation of his right to counsel in this matter. This violation of Defendant's constitutional rights is solely due to the actions of the Government. As such, the Court finds it appropriate to grant Defendant's motion and DISMISS this action WITHOUT PREJUDICE.
III. CONCLUSION
The Court finds that Mr. Sanchez-Vasquez's inability to participate in his defense is a direct result of action by the Government, and warrants dismissal of the indictment pursuant to the Court's supervisory powers. As such, it is recommended that Defendant's motion to dismiss be granted without prejudice.
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court GRANT Defendant Jorge Mario Sanchez-Vasquez's Motion to Dismiss Indictment with Prejudice for Violation to Defendant's Sixth Amendment Rights (Doc. 18).
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-20-2239-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.