Summary
affirming order to release a defendant charged with conspiracy to distribute methamphetamine, despite the existence of an ICE detainer
Summary of this case from United States v. Herrera-QuinoOpinion
4:20-mj-00112
04-09-2020
UNITED STATES of America, Plaintiff, v. Leo Nataly Treviso SOLIS, Defendant.
Amy L. Jennings, United States Attorney's Office, Des Moines, IA, for Plaintiff. Susan R. Stockdale, Attorney At Law, Susan R., West Des Moines, IA, for Defendant.
Amy L. Jennings, United States Attorney's Office, Des Moines, IA, for Plaintiff.
Susan R. Stockdale, Attorney At Law, Susan R., West Des Moines, IA, for Defendant.
ORDER
ROBERT W. PRATT, U.S. DISTRICT COURT JUDGE
Before the Court is the Government's Appeal of Magistrate Judge Decision, ECF No. 22, filed on March 13, 2020, requesting a review of an order setting conditions of release issued by United States Magistrate Judge Hildy Bowbeer in the District of Minnesota, ECF No. 32-6. The Government filed its brief in support of the motion on March 23. ECF No. 40. Defendant Leo Nataly Treviso Solis filed her resistance on March 30. ECF No. 56. The matter is fully submitted.
I. STANDARD OF REVIEW
When reviewing pretrial release orders, a district court reviews the magistrate judge's decision de novo. United States v. Maull , 773 F.2d 1479, 1481 (8th Cir. 1985). The district court must make the same inquiries regarding a defendant's risk of flight and danger to the community as did the magistrate judge. Id. at 1482, 1484–85.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2020, the U.S. Attorney's Office for the Southern District of Iowa filed a Criminal Complaint charging Defendant with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. ECF No. 1. Defendant was arrested on March 11 in Minnesota and had her initial appearance there before Judge Bowbeer that same day. See ECF Nos. 19, 32-2. At the detention hearing before Judge Bowbeer on March 13, a primary case agent investigating the case testified for the Government that Defendant's participation in the drug conspiracy consisted of delivering a backpack containing three pounds of black tar heroin to an undercover officer and wiring between $5000–7000 to different individuals located in Mexico over multiple transactions. ECF No. 35 at 12, 14. The witness further testified Defendant had engaged in drug trafficking activity in the presence of one or more of her minor children. Id. at 17–18.
Defendant began argument by acknowledging there is a rebuttable presumption that there are no conditions or combination of conditions that would reasonably assure her appearance and the safety of the community as she has been charged with an offense for which the maximum term of imprisonment is ten years or more under the Controlled Substances Act, 21 U.S.C. § 801 et seq. See 18 U.S.C. § 3142(e)(3)(A). Nevertheless, Defendant requested release— acknowledging that upon her release she would be turned over to the custody of Immigration and Customs Enforcement (ICE) pursuant to a detainer rather than released into the community—in order to have the opportunity to try to save her status under the Deferred Action for Childhood Arrivals (DACA) immigration policy. Defendant moved to the United States when she was twelve or thirteen years old. She has a strong community of support, including her parents who live nearby in Minnesota, as well as five minor children. Defendant has no prior criminal history.
ICE has filed an immigration detainer in this case. This type of detainer
serves to advise another law enforcement agency that the Department [of Homeland Security (DHS) ] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise [DHS], prior to release of the alien, in order for [DHS] to arrange to assume custody, in situations where gaining immediate physical custody is either impracticable or impossible.
8 C.F.R. § 287.7.
The Government argued there was no guarantee that Defendant would remain in ICE custody and that she could be deported rather than be able to work out her immigration status. The Government conceded there was no risk of danger to the community and instead argued that the real risk was that Defendant might not appear for future court proceedings as required. The Government further argued that even if Defendant were not deported and was allowed to remain in the United States, she should not be released because she was facing a serious offense and has significant connections to a foreign country through her husband's family.
Judge Bowbeer found Defendant had successfully rebutted the presumption based on information contained in the bond report prepared by the U.S. Probation Office as well as testimony from the Government's witness. Id. at 43. The judge noted Defendant had significant ties to her community in Minnesota such that she would not attempt to flee. Id. Judge Bowbeer concluded there was a combination of conditions that could reasonably assure Defendant's future appearance, including attending all required court proceedings, restricting travel to Minnesota and Iowa for court appearances, surrendering and agreeing not to obtain any travel documents, remain law-abiding, and be subject to electronic location monitoring and supervision. Id. Judge Bowbeer recognized the risk that if Defendant was released to ICE custody she could be deported before her trial but concluded such risk was not "an appropriate consideration ... in deciding whether there are conditions" to reasonably assure Defendant's appearance at future proceedings. Id. at 44. The judge found there were numerous reasons to motivate Defendant to try to stay in the United States, including trying to salvage her DACA status and to remain near her minor children and parents. Id. at 44–45.
Following the hearing, Judge Bowbeer entered an Order Setting Conditions of Release. ECF No. 32-6. Given the unique circumstances of the case, however, Judge Bowbeer entered a temporary stay of the release order. See ECF No. 32-5. Defendant was ordered removed to this Court as the charging District. ECF No. 32-8.
The Government filed a motion in this Court pursuant to 28 U.S.C. § 3145(a) seeking review of Judge Bowbeer's Order for release. ECF No. 22. After communication with the Government ex parte, this Court entered an Order temporarily staying the release order until March 25. ECF No. 28. Defendant appeared before Chief Magistrate Judge Helen C. Adams in the Southern District of Iowa on March 24, during which Judge Adams continued the stay of the release order pending ruling on the present motion. See ECF No. 46.
III. LAW AND ANALYSIS
In its motion seeking review, the Government continues to argue that if Defendant is released, she will be transferred to the custody of ICE and potentially face deportation before trial. Indeed, the Government asserts that such a transfer does not alleviate any concerns about Defendant's ability to appear for future court proceedings, rather, it aggravates those concerns and supports her detention. The Government contends that Defendant's immigration status hinges on the outcome of this criminal case and she should therefore be detained pending trial. Additionally, the Government argues Defendant is a flight risk both because she has been charged with a serious drug offense and consequently faces a minimum sentence of ten years and because she has a familial relationship with the source of supply in Mexico and therefore access to a large amount of money to flee.
Defendant responds that § 3142(g) contains an exclusive list of factors that the court must consider in determining whether to release or detain a defendant pending trial and that this list does not include whether the defendant is subject to immigration proceedings or deportation. Thus, Defendant argues, the Court should not consider the fact that there is an ICE detainer in reviewing Judge Bowbeer's release order.
Pretrial detention is authorized when "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). "[E]ither danger to the community or risk of flight is sufficient to authorize detention." United States v. Sazenski , 806 F.2d 846, 848 (8th Cir. 1986). The Government here does not assert that Defendant presents a danger to the community; rather, it argues only that she poses a flight risk. Thus, the Government must show "by a preponderance of the evidence that no condition or set of conditions ... will reasonably assure the defendant's appearance." United States v. Kisling , 334 F.3d 734, 735 (8th Cir. 2003) (emphasis omitted) (quoting United States v. Orta , 760 F.2d 887, 891 (8th Cir. 1985) ).
When determining whether release conditions exist to reasonably assure the appearance of a defendant at trial, the Court considers the following: (1) "the nature and circumstances of the offense," including whether the offense involved a firearm; (2) "the weight of the evidence against the [defendant];" (3) "the history and characteristics of the [defendant]," including his "character, physical and mental condition, family ties, employment, financial resources, ... community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;" (4) whether the defendant was on probation, parole, or other release at the time of the offense or arrest; and (5) "the nature and seriousness of the danger to any person or the community." § 3142(g). Section 3142(g) does not list a defendant's immigration status as a factor for courts to consider.
The Bail Reform Act of 1984, 18 U.S.C. §§ 3141 – 3150, applies to all persons charged with a federal crime, regardless of immigration status. See United States v. Santos-Flores , 794 F.3d 1088, 1090 (9th Cir. 2015) ("Congress chose not to exclude removable aliens from consideration for release or detention in criminal proceedings."); see also United States v. Montoya-Vasquez , No. 4:08CR3174, 2009 WL 103596, at *5 (D. Neb. Jan. 13, 2009) ("If Congress wanted to bar aliens with immigration detainers from eligibility for release, it could readily have said so, but did not."). The Act requires a judicial officer make an individualized determination of release or detention considering the factors set forth in § 3142(g). If the Court were to agree with the Government that Defendant should be detained pending trial simply for the fact that she is subject to an ICE detainer and if released could face possible deportation before trial, it would deny Defendant these statutory protections. See United States v. Brown , No. 4-15-cr-102, 2017 WL 3310689, at *4 (D.N.D. July 31, 2017) ("Congress affirmatively extended to alien persons the same protections it affords citizens under the Act—save for the provision for temporary detention.").
Indeed, § 3142 includes a provision specifically relating to alien persons. Section 3142(d) provides for the temporary detention of a defendant who is not a citizen or lawful permanent resident for a period of ten days to allow the prosecution to notify the appropriate official. If the immigration official does not take custody of the alien person within that ten-day period, courts are directed to treat the person in accordance with the other provisions of the Act, "notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." § 3142(d). "This provision demonstrates that a defendant ‘is not barred from release because he is a deportable alien.’ " United States v. Ailon-Ailon , 875 F.3d 1334, 1338 (10th Cir. 2017) (quoting United States v. Adomako , 150 F. Supp. 2d 1302, 1307 (M.D. Fla. 2001) ).
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Most courts that have examined the issue agree that nothing in the Act authorizes the automatic detention of alien persons pending trial. See, e.g. , Santos-Flores , 794 F.3d at 1091–92 ("The court may not ... substitute a categorical denial of bail for the individualized evaluation required by the Bail Reform Act."); Brown , 2017 WL 3310689, at *4 (N.D. Iowa July 31, 2017) ("[T]he Court would violate the Bail Reform Act if it detained defendant based only on the fact that he is an alien and ICE has filed a detainer."). Magistrate Judges in this District have reached similar conclusions. See United States v. Urizar Lopez , No. 3:18-cr-00059-JAJ-SBJ (S.D. Iowa), ECF No. 16 at 5 ("[T]he mere fact an ICE detainer exists in this case, and that defendant is subject to prior order of removal, is not a basis for automatic detention in this case pending trial. Indeed, the Bail Reform Act does not include a presumption of detention under such circumstances."); United States v. Garcia Munoz , No. 3:18-cr-00062-JAJ-SBJ (S.D. Iowa), ECF No. 17 at 5 (same); United States v. Rodriguez Lozano , No. 4:17-cr-00208-RP-HCA (S.D. Iowa), ECF No. 58 at 3 ("The Bail Reform Act does require this Court to conduct an individualized analysis of a defendant when deciding whether pretrial release on conditions or detention would be appropriate. There would be no individualized assessment if the Court must detain an individual simply because there is a pending ICE detainer and immigration officials would take the defendant into administrative custody pursuant to the detainer and possibly process the defendant for removal.").
Some courts have concluded that although immigration consequences are not conclusive, they are nevertheless a factor that courts should consider under § 3142(g). See, e.g. , United States v. Lozano-Miranda , No. 09-cr-20005-KHV-DJW-5, 2009 WL 113407, at *3 (D. Kan. Jan. 15, 2009) (noting that the "defendant's status as a deportable alien alone does not mandate detention, it is a factor which weighs heavily in the risk of flight analysis"). Still, other courts question whether an ICE detainer should be considered at all in the court's analysis. See Brown , 2017 WL 3310689, at *5 (doubting whether the court should consider an ICE detainer in determining whether to release the defendant); Montoya-Vasquez , 2009 WL 103596, at *5 (questioning whether "the risk of removal by ICE is cognizable at all" under the Act, but nevertheless considering it along with the § 3142(g) factors). And many courts have persuasively concluded that only the defendant's voluntary risk of nonappearance should be considered by the court not the possibility of an involuntary removal by ICE. See, e.g. , United States v. Ailon-Ailon , 875 F.3d 1334, 1339 (10th Cir. 2017) ("We hold that, in the context of § 3142(f)(2), the risk that a defendant will ‘flee’ does not include the risk that ICE will involuntarily remove the defendant."); Montoya-Vasquez , 2009 WL 103596, at *5 ("I conclude that ‘failure to appear’ as used in the Bail Reform Act is limited to the risk that the defendant may flee or abscond, that is, that he would fail to appear by virtue of his own volition, actions and will. If the government—through ICE or any other authority—prevents his appearance, he has not ‘failed’ to appear.").
This Court recognizes, as have other courts, that the present situation is not one created by Defendant. See United States v. Tapia , 924 F. Supp. 2d 1093, 1098 (D.S.D. 2013) "[T]his is a situation where one arm of the Executive, wishing to prosecute this defendant criminally, is arguing that he is likely to flee based on the possible actions of a different arm of the same Executive."); United States v. Barrera-Omana , 638 F. Supp. 2d 1108, 1111–12 (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."). It is not this Court's role to resolve internal decisions of the Department of Justice and DHS about whether a criminal prosecution or administrative deportation should take precedence in this case. The various agencies of the Executive Branch cannot use their alleged failure to cooperate on Defendant's case to deprive her of her rights. See Barrera-Omana , 638 F. Supp. 2d at 1112 ("It is not appropriate for an Article III judge to resolve Executive Branch turf battles. The Constitution empowers this Court to apply the will of Congress upon a criminal defendant on a personal and individualized basis. This Court ought not run interference for the prosecuting arm of the government."). Thus, although the Court will necessarily consider Defendant's immigration status as part of her history and characteristics, the risk of her being involuntarily removed from this country before trial is not an appropriate consideration in determining whether she is a flight risk. Defendant is entitled to an individualized assessment of whether pretrial release is appropriate considering all of the § 3142(g) factors.
After careful de novo review of the entire record, the Court concurs fully with the findings articulated by Judge Bowbeer. See ECF Nos. 32-6, 35. The Court agrees both that Defendant has rebutted the presumption and that the Government has not carried its burden to show by a preponderance of the evidence that Defendant is a flight risk and that no conditions of confinement exist to reasonably assure her appearance at trial. Defendant moved to the Hopkins, Minnesota area in 2002 or 2003 and graduated from Hopkins High School in 2009. ECF No. 36 at 2. In 2010, she left home and moved to Oregon but returned to Hopkins in 2018. Id. She has five minor children with her co-defendant husband, all of whom currently live with her parents in Hopkins. Id. This Court agrees there is strong motivation for Defendant to stay and very little reason for her to voluntarily flee before trial. Accordingly, based on the factors outlined in the Bail Reform Act and this Court's de novo review, the Court concludes Judge Bowbeer was correct in determining Defendant was not a flight risk and that a set of conditions could reasonably assure her appearance.
IV. CONCLUSION
For the reasons stated herein, the Government's Appeal of Magistrate Judge Decision (ECF No. 22) is DENIED, and Magistrate Judge Bowbeer's Order Setting Conditions of Release (ECF No. 32-6) is AFFIRMED.
IT IS SO ORDERED.