Opinion
EP-21-CR-01833(2)-DCG
2022-04-19
UNITED STATES of America, Plaintiff, v. Omar SALAZAR-ANDUJO, Defendant.
Ellen Marie Denum, U.S. Attorney's Office, El Paso, TX, for Plaintiff.
Ellen Marie Denum, U.S. Attorney's Office, El Paso, TX, for Plaintiff.
MEMORANDUM OPINION AND ORDER
DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE
Before the Court is the Government's "Motion for Review of Magistrate Judge's Decision Releasing Defendant on Personal Recognizance, Motion for De Novo Detention Hearing in the Western District of Texas, and Motion for Stay of Release Order" ("Motion") (ECF No. 60). At this time, the Government is only requesting that the Court stay Magistrate Judge Carmen E. Garza's order releasing Defendant Omar Salazar-Andujo on personal recognizance, and that the Court hold a de novo detention hearing. The Government advises the Court that it will later submit a brief in support of its argument that Defendant should be detained without bond. For the reasons the follow, the Court GRANTS the Government's Motion.
The Court has not located a written order or indication of an oral order on the docket in the District of New Mexico. United States v. Salazar-Andujo , No. 5:22-mj-00579-CG-1 (D.N.M. 2022).
I. BACKGROUND
On March 23, 2022, in the Western District of Texas, El Paso Division. Defendant was indicated on five counts: (1) conspiracy to smuggle goods from the United States in violation of 18 U.S.C. §§ 371 & 554 ; (2) dealing Firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A) ; (3) again dealing firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A) ; (4) providing false information on records required to be maintained by a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A) ; and (5) again providing false information on records required to be maintained by a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A).
Authorities arrested Defendant in New Mexico on April 11, 2022. On April 15, 2022, Magistrate Judge Garza, sitting in the District of New Mexico, held a detention hearing. Judge Garza orally denied the Government's motion to detain Defendant without bond and ordered Defendant released. Judge Garza orally set bond on April 18, 2022. Defendant was released later that day. The Government now seeks a stay of Judge Garza's release order.
The Government wants a stay of the release order so that Defendant remains in custody prior to a de novo detention hearing. According to the Government, Defendant should be detained without bond. In support of this position, the Government asserts that Defendant is both a flight risk and a danger to the community. Defendant is a flight risk, the Government alleges, because he is a permanent resident of the United States and a citizen and foreign national from Mexico. The Government contends Defendant maintains strong ties to Mexico.
Defendant presents a danger to the community, the Government asserts, because he is accused of dealing firearms without a license and having conspired to smuggle at least ninety weapons from the United States to Mexico.
II. ANALYSIS
A. The Court's Authority to Issue a Stay of Release Order from a Different Jurisdiction
As an initial matter, the Court must decide whether a district judge can stay a release order issued by a magistrate judge of a different jurisdiction. Review of releases orders are governed by 18 U.S.C. § 3145. In relevant part, the statute states:
(a) Review of a release order.—If a person is ordered released by a magistrate judge, or by a person other than a judge of the court having original jurisdiction over the offense and other than Federal appellate court—
(1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release; and
(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendments of release.
The motion shall be determined promptly.
18 U.S.C. § 3145(a) (hereinafter " section 3145").
By its plain language, the statute authorizes a district judge to review a magistrate judge's release order. 18 U.S.C. § 3145(a)(1). But the statute is silent on the question of which district is the appropriate one to issue a stay of a magistrate judge's release order. Is the authority to grant a stay with the district court of the jurisdiction in which the magistrate judge sits, or is it with the district court of the jurisdiction where a defendant allegedly committed the offense and was indicted?
Section 3145 is also not precisely written to make clear which district should review a magistrate judge's release order on the merits. The statute provides that "the court having original jurisdiction over the offense" should review the release order. 18 U.S.C. § 3145(a). But a separate criminal procedure statute broadly provides that "[t]he district courts of the United States shall have original jurisdiction ... of all offenses against the laws of the United States." 18 U.S.C. § 3231. The phrase "original jurisdiction" in section 3145 must be narrower that the broad grant of jurisdiction over all federal criminal matters as provided for in section 3231. See, e.g., United States v. Vega , 438 F.3d 801, 803 (7th Cir. 2006).
The Fifth Circuit has not had the occasion to directly address this question. The Fifth Circuit has, however, determined that a district court has the authority to stay a magistrate judge's release order, even though section 3145 does not expressly provide that authority. United States v. Brigham , 569 F.3d 220, 230 (5th Cir. 2009). In so holding, the Fifth Circuit noted the importance of a stay order to the exercise of the district court's authority to substantively review a magistrate judge's release order:
[G]iven that the issue being reviewed involves a person's release from custody pending further legal proceedings, the absence of stay authority could render the district court's review power illusory. Specifically, if the district court disagrees with the magistrate judge's determination regarding release versus detention, but no stay is in place, the person in question may have harmed the community or disappeared by the time the district court's ruling is rendered and detention is ordered.
Id. at 230.
This language strongly suggests that the power to stay a release order is coupled with a district court's authority to substantively review a magistrate judge's release order. Further legal proceedings—that is, those beyond the initial detention hearing—will take place in the district where a defendant committed the alleged offense. See, e.g., United States v. Cabrales , 524 U.S. 1, 6, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998) ; Fed. R. Crim. P. 18. If the stay and review authority are coupled, it stands to reason that a district judge in the jurisdiction where the offense took place would have the authority to issue a stay of a release order, even if the release order was issued by a magistrate judge in a different jurisdiction. See United States v. Vega , 438 F.3d 801, 803 (7th Cir. 2006) (noting that the language of section 3145 should be read as limiting "review to the court where charges are pending"). As the Fifth Circuit stated, "the absence of stay authority could render the district court's review power illusory." Brigham , 569 F.3d at 230 ; Vega , 438 F.3d at 803 ("[I]t is the court where the charges are pending that is responsible for any rulings that may be necessary to guarantee the defendant's presence for proceedings.").
Other circuits have addressed the question of which district has section 3145 authority. In Vega , for example, the defendant was charged in the Eastern District of Virginia, arrested in the Northern District of Illinois, and brought before a magistrate judge in the Northern District of Illinois, who granted release on bond. 438 F.3d at 802. The government filed for a stay of the release order in the Eastern District of Virginia, which the district judge granted. Id. The defendant then filed an emergency motion in the Northern District of Illinois seeking immediate release, which the judge denied for lack of jurisdiction. Id. The Seventh Circuit affirmed the district judge's order in the Northern District of Illinois, holding that review of the release order is required "in the district court where prosecution is pending." Id. at 803. In holding this way, the Seventh Circuit recognized the authority of the Eastern District of Virginia to enter a stay on the release order issued by a magistrate judge in the Northern District of Illinois.
The Seventh Circuit does not stand alone. Other circuits courts have persuasively reasoned that section 3145 authority lies with the district court where the defendant allegedly committed the offense. The Second Circuit, in United States v. El Edwy , said:
Section 3145(a) ... permits the court that will ultimately decide the question [of detention or conditional release] to adjudicate it in the first instance, without waiting for the defendant's ultimate appearance in the district. The district court of the district of prosecution is not required to rely on the judgment of a magistrate judge in another district as to whether the defendant can be trusted to appear under an order of release.
272 F.3d 149, 153 (2d Cir. 2001). See also United States v. Munchel , 991 F.3d 1273, 1278–85 (D.C. Cir. 2021) (reviewing the District Court for the District of Columbia's stay and review of release order entered by a magistrate judge in the Middle District of Tennessee); United States v. Cisneros , 328 F.3d 610 (10th Cir. 2003) ; United States v. Torres , 86 F.3d 1029, 1031 (11th Cir. 1996) (noting, with a stay issued by a district court of another jurisdiction, that "[t]he plain language of section 3145 dictates that the district court with original jurisdiction over the offense, i.e. , the prosecuting district ... is the only proper one to review [a release order]"); United States v. Evans , 62 F.3d 1233 (9th Cir. 1995).
The two lines of reasoning discussed above support the proposition that the district court in the district where charges are pending can enter a stay of a release order issued by a magistrate judge of a different jurisdiction. First, the principle stated by the Fifth Circuit in Brigham —that "the absence of stay authority could render the district court's review power illusory"—supports that the district court in the district where charges are pending ought to be able to protect its review authority by issuing a stay of release order. Combining this principle with the holdings of other circuits that say that the district court where charges are pending has the authority to review a release order even when a release order was issued by a magistrate judge of a different jurisdiction, supports this Court's finding that it has the authority to stay Judge Garza's release order issued in United States v. Salazar-Andujo , No. 5:22-mj-00579-CG-1 (D.N.M. 2022).
This conclusion finds additional persuasive support in a number of decisions from district courts in the Fifth Circuit. These district courts have issued orders staying releases granted by magistrate judges in other districts. See United States v. Romero , No. EP-21-CR-01537-DCG, 2021 WL 4805423 (W.D. Tex. Oct. 14, 2021) ; United States v. Yusuf , No. 4:19-CR-271-SDJ, 2020 WL 607105 (E.D. Tex. Feb. 7, 2020) ; United States v. Sotelo , 4:20-CR-179-SDJ, 2020 WL 6684963 (E.D. Tex. Nov. 12, 2020) ; United States v. Zhang Xiao Dong , No. 3:17-cr-546-L, 2017 WL 5629513 (N.D. Tex. Nov. 22, 2017). And district courts of other circuits have done the same. See, e.g., United States v. Godines-Lupian , 816 F. Supp. 2d 126, 127-28 (D.P.R. 2011) ("The court notes that it is most unusual and seldom seen that an Article III United States District Judge ... stay a release order from a United States Magistrate Judge across the Nation, and of the District where [the defendant] was arrested. However, this is the law."). This Court adopts the same reading of section 3145 authority.
In doing so, the Court recognizes that the Sixth Circuit and at least one district court in the Fifth Circuit have held that the district court of the district where the magistrate judge issued the release order has the authority to review the release order. In United States v. Johnson , while reviewing section 3145(b), which contains relevant identical language to section 3145(a), the Sixth Circuit pointed out that section 3145 uses permissive language: a person "may" file in the court having original jurisdiction over the offense. No 96-4173, 1996 WL 711592, at *2 (6th Cir. Dec. 10, 1996) (holding that section 3145 does "not plainly indicate" that the authority to review a release order "only lies in the prosecuting district" (emphasis added)). The Southern District of Texas was persuaded by the Sixth Circuit's reasoning. United States v. Martinez , No. H-10-1260, 2011 WL 52342, at *1 (S.D. Tex. Jan. 6, 2011) (finding that section 3145 ’s permissive language should be read to mean the district judge in the arresting jurisdiction has authority to issue a stay of the magistrate judge's release order in the arresting jurisdiction).
But Johnson and Martinez do not support a conclusion that the authority to issue a stay of a release order must come from the district court of the jurisdiction where the magistrate judge issued the release order. Indeed, in pointing out the permissive language in section 3145, the Sixth Circuit and the Southern District of Texas concluded only that the district court where the release order was issued also has the authority to stay and review a release order. See Johnson , 1996 WL 711592, at *2–4 ; Martinez , 2011 WL 52342, at *1. Their reading does not foreclose the conclusion reached by this Court: that the district court having original jurisdiction over the offense—that is, the district where charges are pending—may enter a stay of a release order issued by a magistrate judge of a different jurisdiction.
B. Whether a Stay Is Warranted
A stay of a release order can only be issued if the Government shows either "a likelihood of success on the merits" or can at least " ‘demonstrate a substantial case on the merits’ and [ ] other factors militate against release." Cf. Woodfox v. Cain , 305 F. App'x 179, 181 (5th Cir. 2008) (quoting Hilton v. Braunskill , 481 U.S. 770, 778, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ) (addressing stay of release pending review of a district court's final judgment granting habeas corpus relief). Other factors include: (1) "whether the applicant will be irreparably injured absent a stay"; (2) "whether issuance of the stay will substantially injure the other parties interested in the proceeding"; and (3) "where the public interest lies." Cf. id. These factors are non-exclusive, and consideration of whether a defendant poses a risk to the community is explicitly permitted. Cf. id. (quoting Hilton , 481 U.S. at 778, 107 S.Ct. 2113 ).
Whether the Government is able to show a likelihood of success on the merits requires the Court to look at the factors that, if shown, would authorize detention pending trial. Detention is only warranted when a court "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). Thus, a stay of a release order is only proper if the Government is able to show a likelihood of success in establishing "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." Id.
Here, the Court finds, based on facts alleged in the indictment, ECF No. 37, and the Government's Motion, ECF No. 60, that the Government is likely to be successful in showing that Defendant is a flight risk and a danger to the community. The Government alleges that Defendant is a foreign national and citizen of another country, and only a permanent resident of the United States. Mot. at 3. Defendant also maintains strong ties to Mexico. Id. This may well create an incentive for Defendant to flee the United States.
Furthermore, Defendant is accused of dealing firearms without a license and conspiring to smuggle weapons from the United States to Mexico. ECF Nos. 37 and 60. The facts of the alleged offense show that the Government is likely succeed in showing that Defendant creates a danger to the community. See United States v. Kent , 496 F. Supp. 3d 500, 506 (D.D.C. 2020) (finding that defendant with loaded firearm presents a danger to the community).
The Court also finds that, on balance, that other factors weigh in favor of granting a stay of the release order. If Defendant flees the United States, then the Government may be irreparably injured. And while Defendant has an interest in release, and a presumption supporting his release, see 18 U.S.C. § 4142; United States v. Chrestman , 525 F. Supp. 3d 14, 22 (D.D.C. 2021), the public also has an interest in reducing potential danger to the community, see 18 U.S.C. § 3142(e). In sum, with the Government's showing of a likelihood of success on the merits, in combination with the other factors, the Court concludes that a stay of the release order is warranted.
III. CONCLUSION
IT IS ORDERED that the Government's "Motion for Review of Magistrate Judge's Decision Releasing Defendant on Personal Recognizance, Motion for De Novo Detention Hearing in the Western District of Texas, and Motion for Stay of Release Order" (ECF No. 60) is GRANTED. Judge Carmen E. Garza's release order in United States v. Salazar-Andujo , No. 5:22-mj-00579-CG-1 (D.N.M. 2022) is STAYED pending a de novo detention hearing before this Court.
IT IS FURTHER ORDERED that to enforce this Court's jurisdiction over the alleged offense, 18 U.S.C. § 3231, the Court will issue a warrant, under its authority prescribed by 28 U.S.C. § 1651(a), for the arrest of Defendant. The warrant to be issued is based on the indictment returned against Defendant Omar Salazar-Andujo.