Opinion
No. 3:18-cr-059-JAJ
2022-02-23
UNITED STATES of America, Plaintiff, v. Elmer Artemio URIZAR LOPEZ, Defendant.
Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, Richard D. Westphal, United States Attorney's Office, Des Moines, IA, for Plaintiff.
Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, Richard D. Westphal, United States Attorney's Office, Des Moines, IA, for Plaintiff.
ORDER
JOHN A. JARVEY, UNITED STATES DISTRICT JUDGE
This matter comes before the Court pursuant to defendant Elmer Urizar Lopez's September 25, 2018 Motion for Reconsideration [Dkt. 37], and January 24, 2022 Second Motion to Dismiss. [Dkt. 40]. The government responded on February 7, 2022 [Dkt. 44], and Urizar Lopez filed a reply on February 10, 2022. [Dkt. 45]. Urizar Lopez asks the Court to reconsider its September 18, 2018 Order. [Dkt. 36]. In that Order, the Court denied Urizar Lopez's June 30, 2018 Motion to Dismiss. [Dkt. 22]. Urizar Lopez argues that the Indictment should be dismissed because the government has violated his rights to a speedy trial, the assistance of counsel, and due process. The Court held a hearing on the motions on February 16, 2022.
For the following reasons, Urizar Lopez's September 25, 2018 Motion for Reconsideration [Dkt. 37] is granted, his January 24, 2022 Second Motion to Dismiss [Dkt. 40] is granted, and the Indictment is DISMISSED with prejudice .
BACKGROUND
Urizar Lopez is a citizen of Guatemala. On January 18, 2014, he was ordered removed from the United States and was advised that he was prohibited from entering the United States for five years. In May 2018, Urizar Lopez was found in the United States. The government reinstated the 2014 removal order and he was once again subject to removal proceedings.
On June 4, 2018, the government filed a criminal complaint against Urizar Lopez in this Court. [Dkt. 1]. The government alleged that Urizar Lopez had illegally reentered the United States, in violation of 8 U.S.C. § 1326(a). Urizar Lopez made his initial appearance the same day. [Dkt. 3]. On June 8, 2018, United States Magistrate Judge Stephen B. Jackson, Jr. held a combined preliminary and detention hearing. [Dkt. 14, 15]. At this hearing, Judge Jackson concluded that the government had established probable cause that Urizar Lopez had committed the offense charged in the complaint. [Id. ]. He reserved ruling on the government's motion for detention. On June 19, 2018, Judge Jackson issued a written order, denying the motion, and ordering that Urizar Lopez be released from the custody, pending the appointment of an appropriate custodian. [Dkt. 16]. The day Urizar Lopez was released from the custody of the U.S. Marshal Service, he was taken into the custody of Immigration and Customs Enforcement ("ICE").
On June 20, 2018, the grand jury returned an indictment against Urizar Lopez. [Dkt. 18]. The four-count indictment charged him with 1) Unlawful Re-entry; 2) Fraud and Misuse of Documents; 3) Misuse of Social Security Number; and 4) Use of Immigration Identification Document Not Lawfully Issued. [Id. ]. An arraignment was scheduled for June 26, before Judge Jackson. Urizar Lopez did not appear at the hearing because he was in ICE custody, and ICE had not transported him to court. [Dkt. 20]. The government requested an arrest warrant based on the failure to appear, which was denied. [Id. ]. Instead, Judge Jackson continued the arraignment hearing and ordered both parties to file status reports by July 9, advising the Court of Urizar Lopez's location and explaining how they proposed the case proceed. [Id. ].
The government filed its status report on July 3, 2018 [Dkt. 23] and the defense filed its report on July 9 [Dkt. 25]. As of both these dates, Urizar Lopez was in ICE custody in the Hardin County Jail in Eldora, Iowa. On August 9, 2018, the defense filed a Supplemental Status Report that stated Urizar Lopez was processed for deportation on August 3, 2018 and that the USCIS Inmate Locator no longer reported that he was in ICE custody. [Dkt. 33]. At some point while he was in custody, Urizar Lopez requested, and was granted, an asylum hearing. Asylum, however, was denied.
On June 30, 2018, Urizar Lopez filed a Motion to Dismiss the Indictment or Alternatively, Motion for an Order to Show Cause. [Dkt. 22]. He argued that ICE had violated the Bail Reform Act ("BRA") and his constitutional rights by taking him into custody after Judge Jackson had ordered that he be released. The Court denied the motion on September 18, 2018. [Dkt. 36]. The Court held that the Immigration and Nationality Act ("INA") and the BRA provide "the government with two sequential decisions: one by the criminal courts and one by immigration authorities." and that simultaneous administrative and criminal proceedings were permissible. [Id. at 4.].
Urizar Lopez filed a Motion for Reconsideration of Order Denying Motion to Dismiss on September 25, 2018. [Dkt. 37]. In that Motion, defense counsel reported that they had contacted Urizar Lopez on September 17, 2018. Urizar Lopez confirmed that he had been deported from the United States in early August 2018, and that he was, at that time, living in Guatemala. [Id. at 2]. Urizar Lopez argued that the indictment should be dismissed because the government violated his constitutional rights by deporting him while his criminal case was pending. [Id. ].
No further activity occurred in this case after Urizar Lopez's Motion for Reconsideration on September 25, 2018, until he filed his Second Motion to Dismiss, on January 24, 2022. To the best of the Court's knowledge, Urizar Lopez is not in the United States.
ANALYSIS
Between the Motion for Reconsideration and the Second Motion to Dismiss, Urizar Lopez alleges violations of the Bail Reform Act, the Speedy Trial Act, and his constitutional right to a speedy trial. The Court will consider each of these arguments in turn.
1. The Bail Reform Act
Urizar Lopez first alleges that his detention by ICE after the Court ordered him to be released violated the BRA. The Eighth Circuit Court of Appeals has weighed in on this issue. See United States v. Pacheco-Poo , 952 F.3d 950, 952 (8th Cir. 2020). The court held that detention of a non-citizen criminal defendant is a valid exercise of ICE's authority under the INA, which does not conflict with the BRA. Id. Instead, "[t]he BRA and INA co-exist." Id. The two statutes serve two distinct purposes and regulate different officials. Id. at 953. Although the BRA requires judicial officials to treat non-citizen defendants the same as citizen defendants, it "does not affect whether ICE can seek removal" of those non-citizens. Id. Because the statutes co-exist, the executive branch is not required to make the decision between the criminal prosecution and immigration detention for non-citizens on pretrial release. Id. at 952. ICE can detain, and institute removal proceedings against, a non-citizen defendant, even when a district court has ordered pretrial release pursuant to the BRA. Id. This decision is in accordance with other Courts of Appeal that have addressed the issue. See id. (citing cases from the Second, Third, Sixth, and District of Columbia Circuit Courts of Appeal); United States v. Ailon-Ailon , 875 F.3d 1334, 1339–40 (10th Cir. 2017) (ordering the district court to set conditions of pretrial release and the U.S. Marshals to release defendant into ICE custody). Dismissal of the indictment is not warranted simply because ICE detained Urizar Lopez, even though the Court had ruled that he was eligible for pretrial release.
2. The Speedy Trial Act
Urizar Lopez alleges that his right to a speedy trial, under the Speedy Trial Act ("STA") has been violated. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. The STA gives effect to the constitutional guarantee. The Act provides that:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
To determine whether the delay in this case violates the Speedy Trial Act, the Court must resolve two questions. The first question is whether the speedy trial clock has begun to run. A criminal defendant must be brought to trial within seventy days of his initial appearance or the filing his indictment, whichever date is later. Id. ; United States v. Aldaco , 477 F.3d 1008, 1017 (8th Cir. 2007). Although Urizar Lopez has made an initial appearance on the complaint, and an indictment has been filed, the government argues that the clock has not begun to run because he has not made an initial appearance on all the counts charged in the indictment.
The speedy trial clock has begun to run in this case. When an indictment is filed after a defendant has already appeared before a judicial officer, "the date the indictment was filed and made public triggers the speedy trial clock." United States v. Mancias , 350 F.3d 800, 808 (8th Cir. 2003) (citing cases). The government argues that this case is distinguishable from Mancias because the indictment against Urizar Lopez added charges that were not included in the complaint. The government's argument is not persuasive. Section 3161(c)(1) refers to "any case," not "any charge." This indicates that the section applies to all the charges encompassed by one criminal case, not just those included in the complaint. The use of the word "case" here can be contrasted with situations where Congress used the word "charge," such as in § 3162(a)(1). Section 3162 generally describes the consequences for failure to comply with the speedy trial deadlines. Subsection (a)(1) specifically provides that if the delay between an arrest and an indictment is too long, "such charge ... shall be dismissed." 18 U.S.C. § 3162(a)(1) (emphasis added). The Eighth Circuit Court of Appeals has interpreted this language to apply only when the exact same charge is alleged in both the complaint and the indictment. United States v. Washington , 893 F.3d 1076, 1079 (8th Cir. 2018). The use of the broader word "case" in § 3161(c)(1) indicates that Congress intended for this provision to apply more broadly. Furthermore, Mancias and the cases it cites do not distinguish between situations where an indictment matches a complaint, and situations in which the indictment adds or changes charges. See, e.g., United States v. Carrasquillo , 667 F.2d 382, 383 (3d Cir. 1981) (noting dates of arrest, initial appearance, and indictment, without reference to specific charges); United States v. Ortega–Mena , 949 F.2d 156, 158 (5th Cir. 1991) (same); United States v. Stoudenmire , 74 F.3d 60, 62 (4th Cir. 1996) (identifying charges in indictment but not original charges of arrest). This indicates that the courts of appeals generally view the language of § 3161(c)(1) as applying to the case as one unit, instead of several distinct charges.
Urizar Lopez made his initial appearance on June 4, 2018. [Dkt. 3]. The indictment was filed on June 20, 2018. [Dkt. 18]. Because the indictment triggered the speedy trial clock, it began to run on June 20, 2018.
The second question is whether the clock has continued to run since 2018. Not all calendar days are counted for speedy trial purposes. Aldaco , 477 F.3d at 1017. Section 3161(h) identifies certain events that cause the clock to toll. Id. ; see 18 U.S.C. § 3161(h). "After these days are excluded, if the total number of non-excludable days exceeds seventy, then the district court must dismiss the indictment upon the defendant's motion." Aldaco , 477 F.3d at 1016–17. The government argues that the time since Urizar Lopez's Motion for Reconsideration should be excluded under § 3161(h)(3). This section excludes time for "any period of delay resulting from the absence or unavailability of the defendant." 18 U.S.C. § 3161(h)(3)(A). A defendant is considered "unavailable" for purposes of this section when "his whereabouts are known but his presence for trial cannot be obtained by due diligence." Id. at § 3161(h)(3)(B).
Some courts have found that, in circumstances like those presented in this case, time is not excludable under § 3161(h)(3) when the defendant is unavailable because he has been deported. See United States v. Resendiz-Guevara , 145 F. Supp. 3d 1128, 1138 (M.D. Fla. 2015) ; see also United States v. Ferreira-Chavez , No. 1:20-cr-00145-BLW, 2021 WL 602822 at *4–5 (D. Idaho, Feb. 12, 2021) ; United States v. Castro-Guzman , CR-19-2992-TUC-CKJ (LCK), 2020 WL 3130395, at *5 (D. Ariz. May 11, 2020). These courts have found that the exception under § 3161(h)(3) cannot apply when the government causes the defendant's unavailability, which it does when it deports him. Resendiz-Guevara , 145 F. Supp. 3d at 1138. The court in Resendiz-Guevara was particularly concerned about excluding time for unavailability because the government was not able to articulate any steps that it had taken to obtain the defendant's presence. Id.
Time is excludable in this case because Urizar Lopez's presence for trial cannot be obtained by due diligence. First, the government took steps to prevent Urizar Lopez from being deported. It filed an application for an Administrative Stay of Removal, which was denied. [Gov. Ex. 3, Dkt. 44-2 at 1]. It also determined that if this Court had issued a writ of habeas corpus ad prosequendum, the writ would not be honored by ICE. While the government considered the possibility of a writ, it did not in fact petition for one. The government's failure does not mean that the exclusion for defendant's unavailability cannot apply. The statute requires due diligence, not that the government take all possible actions, including those it knows would be frivolous. Second, the specific question under § 3161(h)(3) is if his presence "cannot be obtained by due diligence." The statute here is framed in the present tense. Thus, the statute looks to what can be done in the present. In the present, Urizar Lopez's presence cannot be obtained through the exercise of due diligence. The government does not have any mechanism for retrieving and transporting him back into the country for the purposes of these proceedings. Urizar Lopez cannot voluntarily travel back to the district without committing an additional offense. At this stage, his presence cannot be obtained through due diligence.
The speedy trial clock in this case began to run when the indictment was filed. However, every day since Urizar Lopez was deported is excluded from the speedy trial calculation because Urizar Lopez was unavailable, and his presence cannot be obtained through the exercise of due diligence. There has been no violation of the Speedy Trial Act in this case.
3. Sixth Amendment
Urizar Lopez next alleges that his right to a speedy trial, under the Sixth Amendment has been violated. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. Although the STA gives effect to the constitutional guarantee, "Sixth Amendment challenges are reviewed separately from the Speedy Trial Act." Aldaco , 477 F.3d at 1018. A successful speedy trial claim under the Sixth Amendment "require[s] the district court to dismiss the case with prejudice." United States v. Johnson , 990 F.3d 661, 670 (8th Cir. 2021) (quoting United States v. Larson , 627 F.3d 1198, 1207 (10th Cir. 2010) ).
The Supreme Court has identified four " Barker factors" that courts must consider to determine if a delay has violated the constitutional right to a speedy trial. See Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Those factors are: "[1] whether delay before trial was uncommonly long, [2] whether the government or the criminal defendant is more to blame for that delay, [3] whether, in due course, the defendant asserted his right to a speedy trial, and [4] whether he suffered prejudice as the delay's result." Doggett v. United States , 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).
The first Barker factor is the length of the delay. "The Sixth Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences." Johnson , 990 F.3d at 670 (quoting United States v. Sprouts , 282 F.3d 1037, 1042 (8th Cir. 2002) ). In reviewing this factor, the Court first looks to whether the delay was presumptively prejudicial. Id. A delay is presumptively prejudicial if it exceeds one year. Id. Second, the Court considers "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Id. (quoting United States v. Rodriguez-Valencia , 753 F.3d 801, 805 (8th Cir. 2014) ). Here, the delay is presumptively prejudicial, and greatly exceeds the minimum period to trigger judicial examination. The complaint was filed in this case on June 4, 2018, and the indictment was filed on June 20, 2018. That was over three years and eight months ago. This period is over three times longer than the period necessary to trigger judicial scrutiny. Thus, the first factor weighs in Urizar Lopez's favor.
The second factor is the reason for the delay. For this factor, "the court must determine whether the government or the defendant was more to blame for the delay." United States v. Sims , 847 F.3d 630, 634 (8th Cir. 2017) (quoting United States v. Walker , 840 F.3d 477, 485 (8th Cir. 2016) ). In this case, the reason for the delay is Urizar Lopez's absence from the Southern District of Iowa. He is absent because he has been deported. There is no allegation that he has absconded or otherwise voluntarily violated any term of his pre-trial release. Instead, the agency that removed Urizar Lopez from this district (and, ultimately, the country) was ICE—an agency of the federal government. Although the decision was not made by the attorneys litigating this case, or the United States Attorney's Office generally, the federal government was, in fact, responsible for the delay. ICE knew of the pending criminal proceedings. It could have chosen to grant the requested Administrative Stay of Removal, or it could have informed the USAO it intended to honor a writ of habeas corpus ad prosequendum. It did neither. Because an agency of the government caused Urizar Lopez to be removed from this district, it is more at fault for the delay than he is. Therefore, this factor weighs in favor of Urizar Lopez.
The third factor is whether defendant has asserted his right to a speedy trial. In applying this factor, the Court should "weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." Barker , 407 U.S. at 529, 92 S.Ct. 2182. Here, the parties agree Urizar Lopez has asserted his right to a speedy trial. He first asserted the right in his original Motion to Dismiss. [Dkt. 22-1 at 15]. The government responded to this argument by noting that, at the time it filed its response, the delay had only been approximately 35 days. [Dkt. 26 at 18–19]. Urizar Lopez again asserted his right in his Motion for Reconsideration, after he estimated the 70-day STA clock had run. [Dkt. 37 at 7–9]. He again asserted the right by filing his Second Motion to Dismiss on January 24, 2022. [Dkt. 40]. While the frequency of Urizar Lopez's assertions is limited, this is due to the preliminary stage of litigation, not any waiver of the right. Additionally, Urizar Lopez's assertions have been forceful and have made substantive legal arguments regarding the application of the Barker factors. [See Dkt. 22-1 at 18; Dkt. 37 at 7–9; Dkt. 40-1 at 12–17]. Thus, this factor also weighs his favor.
The fourth and final Barker factor is whether the delay has prejudiced the defendant. In considering this factor, "the court should assess the interests served by the speedy trial right, which are ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ " Sims , 847 F.3d at 636 (quoting Barker , 407 U.S. at 532, 92 S.Ct. 2182 ). Of these considerations, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker , 407 U.S. at 532, 92 S.Ct. 2182.
The fourth factor weighs in favor of the government. In this case, Urizar Lopez is not incarcerated, so there is no concern regarding "oppressive pretrial incarceration." Additionally, it is unclear what anxiety and concern Urizar Lopez faces. It is difficult to predict how it has affected Urizar Lopez to have a criminal case pending in federal court for so long, but for there not to be any developments in it.
The most concerning issue is "the possibility that the defense will be impaired" by this delay. Here, the harm alleged by the defendant is purely speculative. Although Urizar Lopez has not received any discovery in this case, he has not articulated how that delay would impede his ability to mount a defense if a trial were set in the future. See United States v. Summage , 575 F.3d 864, 875 (8th Cir. 2009). While he claims that witnesses’ memories may have staled since the alleged offenses occurred, he has not identified any potential witness who is no longer available or cannot remember the relevant events. See id. If this case were tried in the future, the government would carry the burden to prove its case, despite incomplete memories, and defense counsel would be able to probe witnesses’ recollections on cross-examination. Furthermore, the offenses Urizar Lopez is charged with are 1) Unlawful Re-entry; 2) Fraud and Misuse of Documents; 3) Misuse of Social Security Number; and 4) Use of Immigration Identification Document Not Lawfully Issued. [Dkt. 18]. Charges of this nature are usually proven though documents from the relevant agencies, including ICE and the Social Security Administration. Urizar Lopez has not presented any reason to believe that the relevant documents are no longer available from these agencies. The speculative allegations are insufficient to demonstrate prejudice. This factor, therefore, weighs in favor of the government.
Balancing all the Barker factors, the Court finds they weigh in favor of Urizar Lopez. The second factor drives this analysis. This case has languished for well over three years because the government removed Urizar Lopez from the country. It did so knowingly. This is not a situation where different agencies pursued different goals without consulting each other. Instead, ICE knew that the USAO was pursuing criminal charges. Still, it denied the Administrative Stay of Removal and informed the USAO that it would not honor a writ from this Court. In doing so, ICE chose to prioritize removal proceedings over the criminal prosecution. It was within ICE's lawful authority to pursue the removal, but the consequence is that the government did not prosecute these criminal charges. The delay, over Urizar Lopez's repeated invocation of his right to a speedy trial, violates the Sixth Amendment. This case must be dismissed with prejudice. Johnson , 990 F.3d at 670 ("[Defendant] presents a speedy trial claim under the Sixth Amendment, which, if successful, would require the district court to dismiss the case with prejudice." (internal quotations omitted)).
CONCLUSION
Although the Court finds no violation of the Speedy Trial Act here, the delay in this case has violated Urizar Lopez's Sixth Amendment right to a speedy trial. Dismissal with prejudice is the appropriate remedy for a constitutional violation. Because the Court has found dismissal with prejudice is necessary, it does not reach Urizar Lopez's claims of a violation of due process and the right to counsel.
Upon the foregoing,
IT IS ORDERED that defendant's September 25, 2018 Motion for Reconsideration of Order Denying Motion to Dismiss [Dkt. 37] is GRANTED. IT IS FURTHER ORDERED that defendant's January 24, 2022 Second Motion to Dismiss [Dkt. 40] is GRANTED .
IT IS FURTHER ORDERED that the Indictment [Dkt. 18] is DISMISSED with prejudice.