Opinion
CR 21-02520-TUC-RM (EJM)
01-27-2022
United States of America, Plaintiff, v. Evelio Sedeno-Badia, Defendant.
REPORT AND RECOMMENDATION
Eric J. Ma&ovich, United States Magistrate Judge.
Pending before the Court is defendant Evelio Sedeno-Badia's Motion to Dismiss the Indictment based on his continued detention by immigration authorities after being released from custody under the Bail Reform Act (“BRA”). [Doc. 28.] For the reasons that follow, it is recommended that the District Court deny the defendant's motion.
I. Facts
On July 1, 2021, the defendant was arrested and subsequently charged in a criminal complaint with Possession with the Intent to Distribute Fentanyl. At his initial appearance on July 2, 2021, the defendant was ordered detained pending his formal detention hearing, which ultimately occurred on July 13, 2021. At that hearing, defense counsel consented to the defendant's detention based on the facts set forth in the Pretrial Services Report.
On August 19, 2021, defense counsel asked the Court to reconsider the detention order. On August 23, 2021, the Court ordered Pretrial Services to examine the possibility of halfway house placement. Pretrial Services thereafter recommended that the defendant be released to Dismas Charities. On September 29, 2021, the Court followed that 1 recommendation and ordered the defendant released to Dismas Charities.
After being released under the BRA in the criminal case, the defendant was taken into custody by Immigration Customs and Enforcement (“ICE”) based on his legal permanent resident status in conjunction with the charge that he brought drugs into the United States. The defendant has remained in immigration custody during the pendency of both the criminal and immigration cases.
On November 9, 2021, the defendant filed a Motion to Dismiss the Indictment. The defendant first argues that his detention by immigration authorities violates his right to counsel because he has had difficulty communicating with counsel while he has been in immigration custody. The defendant also argues that his detention during the pendency of the immigration proceedings violates the BRA. Alternatively, the defendant argues that the immigration proceedings should be stayed pending the resolution of the criminal case because of the inherent unfairness in concurrent criminal and immigration proceedings.
In its Response, the government argues that the defendant's right to counsel has not been violated because he has not demonstrated that he is unable to meet with counsel at the immigration detention facility. The government also points out that numerous Circuit Courts have held that release of a defendant under the BRA does not preclude immigration authorities from detaining the defendant pending a removal proceeding. Finally, the government argues that only the immigration court has the authority to stay the removal proceedings.
II. Discussion
A district court may exercise its supervisory powers and dismiss an indictment for three reasons: (1) to remedy a constitutional or statutory violation; (2) to protect judicial integrity by ensuring that a conviction rests on appropriate considerations; and (3) to deter future illegal conduct. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991); see also United States v. Hasting, 461 U.S. 499, 505 (1983) (federal courts' “supervisory powers are threefold”). Dismissal of an indictment “is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right 2 and no lesser remedial action is available.” United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991).
Unlike other cases addressed by the District and Magistrate Judges of the District of Arizona, this case does not directly involve an infringement on the defendant's constitutional right to a speedy trial or right to counsel. Indeed, the defendant does not claim that his right to a speedy trial has been or will be violated.
See, United States v. Sanchez-Vasquez, No. CR-20-2239-TUC-JGZ (BGM), 2021 WL 4430835 (D. Ariz. June 23, 2021), adopted in part by 2021 WL 4427063 (D. Ariz. Sept. 27, 2021); 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); United States v. Lutz, No. CR-19-692-001-TUC-RM (BGM), 2019 WL 5892827; United States v. Coronado-Vejar, No. CR-19-01962-001-TUC-RM (BGM), 2020 WL 2782502 (D. Ariz. May 29, 2020); United States v. Calderon-Lopez, No. CR-19-03027-001-TUC-RM (DTF), 2020 WL 2616034 (D. Ariz. May 22, 2020); 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 (D. Ariz. Nov. 13, 2018); United States v. Monteverde, No. CR-20-00166-001-TUC-JCH (JR), adopted by 2021 WL 5027880 (D. Ariz. October 29, 2021).
In terms of the alleged violation of his right to counsel, defense counsel argues that there are several barriers to effective communication between federal public defenders and their clients in immigration custody. Counsel first argues that time for personal visits is increased because immigration detention centers are at different locations in Florence and Eloy, away from the facility (CoreCivic) where pretrial detainees are held, and defendants in immigration custody have been moved between immigration detention centers without providing notice to defense counsel. Counsel argues that these facts are significant because of current federal public defender caseloads. Defense counsel also argues that he has not been able to confirm that phone calls with his client are confidential and counsel is unaware if the immigration detention center allows counsel to schedule confidential calls.
Although the Court is not unsympathetic to the challenges faced by defense counsel, the Court finds that counsel's time constraints amount to an inconvenience and not a 3 violation of the right to counsel. Additionally, without confirmation of the ability of counsel to have a private conversation with his client, these arguments do not yet support an argument that the right to counsel has been violated.
The defendant also argues that his detention by immigration authorities violates his right to be released under the Bail Reform Act of 1984 (“BRA”), 18 U.S.C. § 3141 et seq. As discussed below, many Circuit Courts have rejected this precise argument.
The BRA governs the pretrial detention of those charged with federal criminal offenses. The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (“INA”) governs the detention of individuals who enter the United States without lawful permission to do so. The government must comply with the BRA when prosecuting someone for a federal offense. ICE must comply with the INA when seeking to remove a person from the United States. This case addresses the problem that arises when these Executive Branch agencies seek to prosecute and remove an individual simultaneously. The issue here is whether the defendant (who was released under the BRA) can be held in ICE custody while his criminal prosecution by the government is pending.
The conflict and interplay between the BRA and the INA have been directly addressed by seven appellate circuits. See United States v. Baltazar-Sebastian, 990 F.3d. 939 (5th Cir. 2021); United States v. Barrera-Landa, 964 F.3d 912 (10th Cir. 2020); United States v. Pacheco-Poo, 952 F.3d 950 (8th Cir. 2020); United States v. Lett, 944 F.3d 467 (2nd Cir. 2019); United States v. Soriano Nunez, 928 F.3d 240 (3rd Cir. 2019); United States v. Vasquez-Benitez, 919 F.3d 546 (D.C. Cir. 2019); United States v. Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018). These cases all hold that the statutes do not conflict such that pretrial release under the BRA precludes pre-removal detention under the INA.
The D.C. Circuit in Vasquez-Benitez explained:
The Supreme Court has affirmed that civil detention is a constitutionally permissible part of the Congress's broad power over immigration and the Executive's authority to execute that power. See Demore v. Kim, 538 U.S. 510, 523, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). So long as ICE detains the alien for the permissible purpose of effectuating his removal and not to “skirt [the] Court's decision [in] setting the terms of [his] release under4
the BRA, ” . . .ICE's detention does not offend separation-of-powers principles simply because a federal court, acting pursuant to the BRA, has ordered that same alien released pending his criminal trial. Thus, we see no constitutional conflict of the kind articulated by the district court.
Neither do we see a statutory conflict. 18 U.S.C. § 3142(d) applies only if a “judicial officer determines that. . . [the defendant] may flee or pose a danger to any other person or the community.” 18 U.S.C. § 3142(d)(2). As already discussed, the district court decided that Vasquez-Benitez is not a flight risk or a danger to the community and therefore § 3142(d)(2) does not apply. In short, the supposed conflict between the BRA and the INA simply does not exist in this case.
Nor do the BRA and the INA conflict more generally. Individuals are detained under the BRA under authority separate from that used to detain individuals under the INA. A criminal defendant is detained under the BRA to ensure his presence at his criminal trial and the safety of the community. See 18 U.S.C. § 3142(e)(1). An illegal alien is detained under the INA to facilitate his removal from the country. See 8 U.S.C. § 1231(a)(2). 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.
A further word is warranted. The district court relied on the principle “ ‘that a precisely drawn, detailed statute pre-empts more general remedies,' even where both ‘literally appl[y].' ” . . . (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 834, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). There is, however, another principle that should have guided its resolution of the antecedent question whether two statutes “literally apply”-that is, “courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). The Congress has never indicated that the BRA is intended to displace the INA. See 18 U.S.C. § 3142.Vasquez-Benitez, 919 F.3d at 552-54. See also Lett, 944 F.3d at 470-71 (BRA and the INA serve different purposes, govern separate adjudicatory proceedings, and provide independent statutory bases for detention; neither precludes government from exercising its detention authority pursuant to the other, and courts cannot order Executive Branch to 5 choose between criminal prosecution and removal); Pacheco-Poo, 952 F.3d at 952 (rejecting defendant's argument that a BRA release order precludes INA removal, explaining that both laws can coexist as the BRA does not have any clearly expressed intention to subordinate the INA); Soriano Nunez, 928 F.3d at 247 (finding “no textual conflict between the BRA and the INA”); and Veloz-Alonso, 910 F.3d at 270 (finding that ICE may fulfill its statutory duties under the INA to detain an illegal alien pending trial regardless of a BRA release order).
The Ninth Circuit has not specifically addressed this precise issue. However, in United States v. Diaz-Hernandez, 943 F.3d 1196, 1199 (9th Cir. 2019), that court cited Vasquez-Benitez, 919 F.3d at 552, in holding that detention of a criminal defendant pending trial pursuant to the BRA and detention of a removable noncitizen pursuant to the INA are separate functions that serve separate purposes and are performed by different authorities.
In the absence of any direct Ninth Circuit precedent, this Court will follow the holding and reasoning of many other Circuit Courts. Here, defendant is subject to a lawful immigration detainer and is being detained by immigration authorities in connection with removal proceedings. The BRA does not give this Court authority to prevent ICE from performing its independent statutory obligations while the defendant's present criminal case is pending. Because there is no evidence that the purpose of the defendant's detention by immigration authorities is to circumvent the release order in the criminal case, dismissal of the indictment is not warranted based on a violation of the BRA.
Defense counsel also makes several arguments for dismissal based on the unfairness of having the federal criminal prosecution and immigration proceedings occur concurrently. Counsel points to the fact that the defendant has no right to court-appointed counsel in the immigration proceedings; he cannot testify in the immigration proceedings because that testimony could be used against him in the criminal case; and if the defendant remains silent in the immigration case, he may not be able to defend himself in that proceeding. Defense counsel points out that the Executive Branch has the discretion to temporarily delay, postpone, or decline to initiate removal proceedings until the criminal 6 case is resolved. While all of that is certainly true, this Court cannot force the Executive Branch to exercise that discretion in the immigration proceedings. Moreover, contrary to the defense's contention, this Court does not have the authority to stay the immigration proceedings pending the resolution of the criminal case. A stay of the immigration proceedings is within the province of the immigration judge, and the defense does not address whether a stay has been requested to alleviate the prejudice stemming from concurrent proceedings.
Finally, the defense argues that “DHS regulations also prohibit an alien's removal until the conclusion of his criminal proceedings.” [Doc. 28 at 4.] Specifically, the defense identifies 8 C.F.R. § 215.2 which provides that no alien shall depart from the United States if his departure would be prejudicial to the interests of the United States. Departure is deemed prejudicial if the alien is the subject of “any criminal case . . . pending in a court of the United States.” 8 C.F.R. § 215.3(g). The defense cites no case law to support its interpretation that these regulations prohibit the government from removing a defendant while his criminal case is pending. As the government points out, the Eighth Circuit has held that these regulations govern “an ‘alien['s] acts, '” not the Executive Branch's removal of an alien. Pacheco-Poo, 952 F.3d at 953. Additionally, and importantly, even if these regulations provide that immigration authorities cannot remove a defendant while his criminal case is pending, the defendant's complaint - that he is being detained pending immigration proceedings - is not addressed by these regulations.
III. Recommendation
Based on the foregoing, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Defendant's Motion to Dismiss the Indictment [Doc. 28].
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the district court. 7
If any objections are filed, this action should be designated case number: CR 21-02520-TUC-RM. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 8