Opinion
No. CR-18-0700-TUC-RM (BGM)
10-23-2018
United States of America, Plaintiff, v. Juan Carlos Laurean-Lozoya, Defendant.
REPORT AND RECOMMENDATION
Currently pending before the Court is Defendant's Motion to Dismiss Indictment with Prejudice (Doc. 25). The Government has filed its response and Defendant replied. Govt.'s Response in Opp. to Def.'s Mot. to Dismiss Indict. with Prejudice (Doc. 33); Def.'s Reply to Govt.'s Response to Def.'s Mot. to Dismiss (Doc. 36). Defendant is charged with one (1) count of attempting to use a document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, which he knew to be forged, counterfeited, altered, or falsely made, and which Defendant presented to Customs and Border Protection officials at the DeConcini Port of Entry in Nogales, Arizona, as proof that he had lawful authority to legally enter in the United States from Mexico, in violation of Title 18, United States Code, Section 1546(a). Indictment (Doc. 18).
Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On August 17, 2018, oral argument was held before Magistrate Judge Macdonald, and the matter taken under advisement. Minute Entry 8/17/2018 (Doc. 40). The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion and dismiss this matter with prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2018, Defendant Juan Carlos Laurean-Lozoya was arrested at the DeConcini Port of Entry in Nogales, Arizona. See Compl. (Doc. 1). The following day, he was charged in a criminal complaint and had his Initial Appearance in this matter. See Compl. (Doc. 1); Minute Entry 4/2/2018 (Doc. 2). Defendant was charged with one count in violation of 18 U.S.C. § 1546 - false claim to citizenship, and one count in violation of 18 U.S.C. §1028 - document fraud. Compl. (Doc. 1).
On April 9, 2018, Defendant chose to exercise his right to reject the "flip-flop" plea offer, and proceeded on to the Detention Hearing after waiving his right to a preliminary hearing in exchange for early Jencks disclosure. Minute Entry 4/9/2018 (Doc. 6). Because Pretrial Services had not interviewed Defendant, the defense moved for a one day continuance of the Detention Hearing in order to allow for this interview. Id. Later that same day, Pretrial Services conducted their interview with Defendant, and filed a report recommending his release upon conditions, including the third-party custodianship of Fernanda Mendoza, his girlfriend. See Pretrial Services Rpt. (Doc. 7).
On April 10, 2018, Magistrate Judge Ferraro ordered Defendant released pursuant to 18 U.S.C. § 3142, adopting the recommendations made by Pretrial Services. Minute Entry 4/10/2018 (Doc. 10). Although the Government did not object to the release order at the time of the hearing, later in the day it filed a motion to stay and review of the Order. Minute Entry 4/10/2018 (Doc. 10); Govt.'s Mot. for Stay and Review of Magistrate Judge's Release Order (Doc. 8). Defendant's release was stayed, and he remained in custody pending appeal before the Honorable Rosemary Marquez.
On April 16, 2018, following written briefing by the parties, Judge Marquez heard argument, and affirmed Magistrate Judge Ferraro's order of release. Minute Entry 4/16/2018 (Doc. 16). Defendant was never released, however, because on April 17, 2018, the Government removed Defendant from the United States. See Minute Entry 5/24/2018 (Doc. 22). Prior to his removal Customs and Border Protection Officers interrogated Defendant regarding the events of this case, without his counsel being present or even made aware of the interview. See Govt.'s Response (Doc. 33) at 2; Def.'s Reply (Doc. 36) at 3. On April 25, 2018, the Government indicted Defendant on one count of presenting forged, counterfeited, altered, or falsely made documents to Customs and Border Protection officials for entry at the DeConcini Port of Entry in Nogales, Arizona. Indictment (Doc. 18). On May 24, 2018, the Government moved for an arrest warrant, which the Court denied. Minute Entry 5/24/2018 (Doc. 22). On June 26, 2018, Defendant filed his motion to dismiss (Doc. 25).
II. ANALYSIS
Defendant seeks dismissal of this cause of action, because by having him removed, the Government has made him unavailable for trial and contravened Judge Marquez's release order. Def.'s Mot. to Dismiss (Doc. 25) at 3-7. Defendant urges that the Government did not have the authority to have Defendant removed while his criminal action was pending. Id. at 4-5. Further, Defendant urges that now that he has been absented from this jurisdiction by action of the Government, the criminal case should be dismissed with prejudice. Id. at 5-7. The Government counters that rules of statutory construction mandate Defendant's removal; Defendant's reliance on United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012) is misplaced and it was wrongly decided; and dismissal with prejudice is too harsh of a penalty. See Govt.'s Response (Doc. 33). The Government's arguments are without merit, and Defendant's motion should be granted.
A. The Bail Reform Act of 1984
The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required . . ." U.S. Const. amend. VIII. In enacting the BRA, Congress determined that any person charged with a criminal offense shall be released pending trial: a) on personal recognizance; b) upon execution of an unsecured appearance bond; or c) on a condition or combination of conditions, unless "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]" 18 U.S.C. § 3142(e)(1); see also 18 U.S.C. § 3142(a), (b). Moreover, "[o]nly in rare cases should release be denied, and doubts regarding the propriety of release are to be resolved in favor of the defendant." United States v. Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015) (citations omitted).
A court shall "take into account the available information concerning—" the nature and circumstances of the offense; the weight of the evidence against the person; the history and characteristics of the person; and the nature and seriousness of the danger to any person or the community posed by the person's release. 18 U.S.C. § 3142(g). Nowhere among the factors for the Court's consideration is the existence of an ICE detainer. In this case, Defendant Laurean-Lozoya was granted pretrial release with conditions including a third party custodian. Despite Judge Marquez's Order, Defendant was never released.
B. Immigration and Nationality Act
United States immigration law is embodied in the Immigration and Nationality Act of 1965 ("INA"), as amended. 8 U.S.C. § 1101, et seq. The United States Secretary of Homeland Security is "charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers[.]" 8 U.S.C. § 1103(a)(1).
The Government asserts that the Defendant "was subject to mandatory detention on an immigration proceeding, and ICE did not have the authority to release him in violation of that statutory mandate." Govt.'s Response (Doc. 33) at 3. Section 1225(b)(2)(A) provides that "in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [of Title 8, United States Code.]" 8 U.S.C. § 1225(b)(2)(A). The Government argues that "[t]he statutory provision is non-discretionary, meaning that ICE does not have the authority to choose whether or not to detain an arriving alien who is facing inadmissibility charges under 8 U.S.C. § 1182(a)(2) . . . [and that] '[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.'" Govt.'s Response (Doc. 33) at 3 (citing 8 U.S.C. §1226(e)).
The Government's contention is without merit. "When an alien is subject to a removal order, the INA provides that the Executive Branch 'shall remove the alien from the United States within a period of 90 days.'" United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167, 1174 (D. Or. 2012) (citing 8 U.S.C. § 1231(a)(1)(A)). "The removal period begins on the latest of the following: . . . [i]f the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement." 8 U.S.C. § 1231(a)(1)(B) (emphasis added). The court in Trujillo-Alvarez contemplated the meaning of the phrase "released from detention or confinement" as follows:
Although the statutory phrase "released from detention or confinement" is not defined, in the context of the entirety of Section 1231 the most reasonable interpretation of the phrase is that it refers to release from incarceration pursuant to a final judgment of conviction as entered by a court of competent jurisdiction. See, e.g., 8 U.S.C. § 1231(a)(4)(A) ("Except as provided in section 259(a) of title 42 and paragraph (2), the Attorney General [now, the Secretary of Homeland Security] may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, [post-conviction] supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal."); see also United States v. Rembao-Renteria, No. 07-mj-
399 (JNE/ABJ), 2007 WL 2908137, at *3 (D.Minn. Oct. 2, 2007) ("Parole, supervised release, probation, and the possibility of being imprisoned again all assume a conviction. The Court does not read this list to include conditions placed on a defendant who has been charged but not convicted.").United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1175 (D. Or. 2012) (alterations in original) (emphasis added). "[T]he 90-day rule applies after the Defendant is released from confinement, which would not occur until Defendant is released from incarceration pursuant to a final judgment[.]" United States v. Resendiz-Guevara, 145 F.Supp.3d 1128, 1135 (M.D. Fla. 2015); see also United States v. Castro-Inzunza, 2012 WL 6622075, *1 (9th Cir. July 23, 2012) (defendant is "in custody" while on pretrial release, and as such the removal period is tolled). Moreover, "Section 215.2 of the INA authorizes a departure-control officer to temporarily prevent an alien's departure 'if his interests would be prejudicial to the interests of the United States.'" Id. (quoting 8 C.F.R. § 215.2). The eleven (11) enumerated categories of aliens whose departure would be prejudicial to the interests of the United States include "[a]ny alien who 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: Provided, That any alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part." 8 C.F.R. § 215.3(g).
In addition, 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. Cf. Hensley v. Mun. Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (holding that a person is in "custody" for purposes of the habeas corpus statute when the person is subject to restraints "not shared by the public generally"); see also United States v. Castro-Inzunza, No. 12-30205, Dkt. 9, 2012 WL 6622075 (Order) (9th Cir. July 23, 2012) (citing Hensley in support of the same proposition in the context of the INA).
Here, Defendant was ordered released subject to conditions of pretrial supervision pending trial. As such, Defendant remained in custody, and the ninety (90) day removal period had not yet begun to run. Furthermore, the Government has failed to show why it lacked the ability to prevent Defendant's departure. Indeed, Defendant's removal appears to have occurred without warning to the Assistant United States Attorney. The Court finds it unsettling that the Department of Homeland Security had no trouble turning Defendant over to the United States Attorney for prosecution, but the moment that Mr. Laurean-Lozoya was scheduled for release from pretrial incarceration pending trial, DHS instituted removal proceedings.
C. The Interplay Between the BRA and the INA
The Government argues that "[t]he pendency of a criminal trial for which [the Defendant] has been granted bail does not extinguish the Attorney General's mandatory detention authority under 8 U.S.C. § 1225(b)(2)(A) to detain him pending concurrent removal proceedings." Govt.'s Response (Doc. 33) at 3-4. The Government further argues that "[b]y mandating detention for arriving aliens under 8 U.S.C. § 1225, Congress did not somehow retroactively amend the BRA to require their release when granted bail in a separate criminal proceeding." Id. at 4. There are "two regulations issued under the INA[, however, that] lend credence to the opposite argument, i.e. criminal prosecution should take priority over removal." United States v. Valadez-Lara, 2015 WL 1456530 at *4 (N.D. Ohio March 30, 2015). As the Valadez-Lara court noted:
First 8 C.F.R. § 215.2(a) provides: "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." The second regulation states departure from the United States of any alien shall be deemed prejudicial to the interests of the United States if the alien is party to any criminal case pending in the United States. 8 C.F.R. § 215.3(g). Therefore, the regulations have outlined a priority for prosecution over removal. A conclusion that is consistent with the interpretation that removal periods do not begin until release from detention or confinement has been completed. 8 U.S.C. § 1231(a)(1)(B)(iii). Furthermore, the BRA specifically provides an opportunity for ICE to preempt the criminal
investigation at 18 U.S.C. § 3142(d)(2); if custody is not transferred to the immigration authorities under this provision, then the alien is treated as any other individual would be under the BRA.Valadez-Lara, 2015 WL 1456530 at *4. "It appears from the statutory and regulatory language that detainment under the INA, for the purpose of arrest and removal, is secondary to the prosecution of aliens for criminal offenses." Id.
The Government is suggesting that an ICE detainer will always result in denial of release under the BRA. This seems inconsistent with Congress's explicit list of factors for a court's consideration under the BRA, in which the presence of an ICE detainer is notably absent. "The risk of nonappearance referenced in [the BRA] has to involve an element of volition." United States v. Barrera-Omana, 638 F.Supp.2d 1108, 1111 (D. Minn. 2009). "The problem here is not that defendant will absent himself from the jurisdiction, but that two Article II agencies will not coordinate their respective efforts." Id. at 1111-12.
"Accordingly, the Executive Branch has a choice to make, it may either take Defendant into custody for the purpose of removing him or it may temporarily suspend removal while criminal proceedings are carried out." Valadez-Lara, 2015 WL 1456530 at *4 (citing Trujillo-Alvarez, 900 F.Supp.2d at 1179). "If ICE declines removal in favor of criminal prosecution, the Court will apply the BRA and the Defendant will be treated 'in accordance with other provisions of that law as required by Congress.'" Id. (citing 18 U.S.C. § 3142(d)). "It was DHS that referred Defendant to the U.S. Attorney's office for prosecution[,] [t]he Court cannot contemplate why the two Executive Branch agencies that began a concerted effort to deal with Defendant suddenly changed course." United States v. Resendiz-Guevara, 145 F.Supp.3d 1128, 1135 (M.D. Fla. 2015). "This court ought not to run interference for the prosecuting arm of the government." Id. at 1137 (citations omitted). "[B]ecause the Executive Branch elected to prioritize deportation over the criminal prosecution the indictment should be dismissed." Id. . . .
D. Sixth Amendment Violation
The Government argues that there is no Sixth Amendment violation, because "[d]efense counsel has the ability to speak with the defendant, and should he request it, arrangements can be made for him to meet with the defendant in Nogales, Arizona." Govt.'s Response (Doc. 33) at 8.
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. "Defendant's deportation presents a clear challenge . . . to his ability to consult with counsel, to review the evidence against him[,] and to prepare a defense to the charge. . . . This constitutes a violation of his Sixth Amendment right to counsel." United States v. Resendiz-Guevara, 145 F.Supp.3d 1128, 1138 (M.D. Fla. 2015).
"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). "It is undisputed that Defendant's unavailability to face the charges against him is not due to his own volition but the Executive Branch's decision to deport him." Resendiz-Guevara, 145 F.Supp.3d at 1138.
The Court finds that Defendant Laurean-Lozoya's questioning by ICE agents, prior to his removal and without his counsel present or even having been notified, is an egregious violation of his Sixth Amendment right to counsel. Further, because Defendant has been removed from the United States and returned to Mexico, he 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 WITH PREJUDICE.
III. CONCLUSION
The Court finds that the Government's conduct in this matter is outrageous, 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 with prejudice.
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court GRANT Defendant Juan Carlos Laurean-Lozoya's Motion to Dismiss Indictment with Prejudice (Doc. 25).
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-18-00700-TUC-RM.
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 23rd day of October, 2018.
/s/_________
Honorable Bruce G. Macdonald
United States Magistrate Judge