United States v. Trujillo-Alvarez, Case No. 3:12–CR–00469–SI.

• Citation: 900 F.Supp.2d 1167
• Decision Date: 29 October 2012
• Docket Number: Case No. 3:12–CR–00469–SI.
• Parties: UNITED STATES of America v. Enrique TRUJILLO–ALVAREZ, Defendant.
• Court: U.S. District Court — District of Oregon

900 F.Supp.2d 1167

UNITED STATES of America

v.Enrique TRUJILLO–ALVAREZ, Defendant.

Case No. 3:12–CR–00469–SI.

United States District Court, D. Oregon.

Oct. 29, 2012.

S. Amanda Marshall, United States Attorney, Gregory R. Nyhus and Ryan W. Bounds, Assistant United States Attorneys, Portland, OR, for United States of America.

Christopher J. Schatz, Assistant Federal Public Defender, Portland, OR, for Defendant.

OPINION AND ORDER

SIMON, District Judge.

This case requires the Court to reconcile the Bail Reform Act of 1984 (“BRA”), as amended, 18 U.S.C. § 3141, et seq., with the Immigration and Nationality Act of 1965 (“INA”), 8 U.S.C. § 1101, et seq. A reconciliation is necessary because a tension has emerged in the application of these two laws by two separate departments within the Executive Branch, the U.S. Department of Justice and the U.S. Department of Homeland Security.

The Office of the U.S. Attorney, which is part of the U.S. Department of Justice, is the government's primary agency responsible for the prosecution of federal offenses.¹ In the BRA, Congress established a comprehensive set of rules and procedures for determining when, and under what conditions, a person charged with a federal offense must be released from custody while awaiting trial. The Bureau of Immigration and Customs Enforcement (“ICE”), which is part of the U.S. Department of Homeland Security, is the government's primary agency responsible for the removal and deportation of aliens who have no lawful right to be in the United States.²

When an alien who has no lawful right to be in the United States is found in this country, ICE may remove and deport that person under the authority of the INA. Alternatively, if such an alien is believed to have committed a federal offense, including illegal reentry, ICE may choose to postpone the removal and deportation of that person while the U.S. Attorney's Office brings a criminal prosecution.³ Which pathway to take in any given case is a policy decision, and it is for the Executive Branch to determine.

When the Executive Branch decides that it will defer removal and deportation in favor of first proceeding with federal criminal prosecution, then all applicable laws governing such prosecutions must be followed, including the BRA. In such cases, if a judicial officer ⁴ determines under the BRA that a particular defendant must be released pending trial because that defendant does not present a risk of either flight or harm, and the government has chosen not to appeal that determination, the Executive Branch may no longer keep that person in physical custody. To do so would be a violation of the BRA and the court's order of pretrial release.

In this case, the Defendant is alleged to be an alien and citizen of Mexico with no lawful right to be in the United States. He has been charged with the crime of illegal reentry. He also has longstanding ties to and connections with the local community. He has lived with his wife in the local area for more than 15 years, and they have three minor children who are all U.S. citizens. He also has a history of stable employment in the area and is not accused of a crime of violence. For these reasons, a United States Magistrate Judge determined under the BRA that the Defendant does not present a risk of flight or any danger to any person or to the community if released while awaiting his upcoming trial. Under the BRA, the Magistrate Judge ordered that the Defendant be released pending trial, subject only to those specific conditions imposed by the Magistrate Judge. If the Executive Branch chooses not to release the Defendant and instead decides to abandon criminal prosecution of the pending charge and proceed directly with Defendant's removal and deportation, the law allows the Executive Branch to do that. If, however, the Defendant is not released pending trial as directed by the Magistrate Judge pursuant to the BRA, the pending criminal prosecution of the Defendant may not go forward. To hold otherwise would deprive the Defendant of his statutory right to pretrial release under the Bail Reform Act and possibly even deprive the Defendant of his Fifth Amendment and Sixth Amendment rights to due process and effective assistance of counsel, respectively.

As explained more fully below, the Executive Branch will be provided with a reasonable, albeit limited, time in which to make this decision. The Executive Branch has one calendar week from the date of this Opinion and Order to return the Defendant to the District of Oregon and release him subject to the conditions previously determined by the Magistrate Judge. If that does not occur, the criminal charge now pending against the Defendant will be dismissed with prejudice.

I. FACTUAL BACKGROUND

Enrique Alvarez–Trujillo ⁵ is 46–year–old male of Hispanic heritage. He has lived in the Portland metropolitan area for the last 18 years. He has a home, where he and his wife, with whom he has been living for the past 15 years, are raising their three children, all of whom are U.S. citizens. He is employed in several jobs. His primary employer reports that Mr. Alvarez–Trujillo is a “very good and loyal employee.” Another employer states that Mr. Alvarez–Trujillo is an “excellent worker.” In May 2012, Mr. Alzarez–Trujillo's youngest daughter, who was then eight years old, became seriously ill with encephalitis and was hospitalized for approximately two months. During her hospital stay, Mr. Alvarez–Trujillo was with his daughter “the whole time she was in the hospital.” He is the sole financial support for his family. Mr. Alvarez–Trujillo does not use drugs and last consumed alcohol more than eight years ago.

While in his twenties, Mr. Alvarez–Trujillo had some problems with the criminal law. He was convicted of a drug trafficking offense in California in 1989. On September 17, 1993, he was deported from the United States as an alien and citizen of Mexico pursuant to an Order of Deportation.

On August 8, 2012, Mr. Alvarez–Trujillo was arrested in the Portland area for driving with a suspended driver license.⁶ He was booked and released. As a result of this contact with local law enforcement, Mr. Alvarez–Trujillo came to the attention of ICE. On August 27, 2012, an ICE agent arrested Mr. Alvarez–Trujillo and placed him under ICE custody. ICE then served Mr. Alvarez–Trujillo with a Notice of Intent/Decision to Reinstate Prior Order (Form I–871) and advised him of his rights. Mr. Alvarez–Trujillo declined to make a statement. After concluding that Mr. Alvarez–Trujillo was an alien subject to removal, an ICE officer reinstated Mr. Alvarez–Trujillo's 1993 Order of Deportation, in accordance with Section 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5).

Also on August 27, 2012, an ICE Deportation Officer, following prosecution guidelines developed by the U.S. Attorney's Office, presented the case against Mr. Alvarez–Trujillo to the U.S. Attorney's Office for criminal prosecution. On September 4, that same ICE Deportation Officer caused an Immigration Detainer—Notice of Action (an “ICE detainer”) to be lodged against Mr. Alvarez–Trujillo. Under this ICE detainer, the U.S. Department of Homeland Security informed the U.S. Marshals Service in Portland that ICE had “[o]btained an order of deportation or removal from the United States” for Mr. Alvarez–Trujillo. The ICE Deportation Officer explained that such an immigration detainer is filed in every case submitted to the U.S. Attorney's Office for prosecution “[i]n order to ensure that the alien returns to ICE custody at the end of their proceedings....” Tr. 42.

An indictment against Mr. Alvarez–Trujillo was returned by the grand jury in the District of Oregon on September 5, 2012, and was filed with the District Court on September 6. Doc. 1. The indictment charges one count of illegal reentry in violation of 8 U.S.C. § 1326(a). Id. On September 7, ICE transported Mr. Alvarez–Trujillo to the U.S. District Court in Portland and turned him over to the U.S. Marshals Service. Later that day, Mr. Alvarez–Trujillo was brought before United States Magistrate Judge Paul Papak for arraignment on the indictment. Mr. Alvarez–Trujillo entered a plea of not guilty, and the court set a trial date of November 13, 2012, in Portland. Doc. 6. During his arraignment, Mr. Alvarez–Trujillo, through his court-appointed counsel, requested that he be allowed an opportunity to prepare for a detention/release hearing. Judge Papak granted that request.

On September 11, 2012, Mr. Alvarez–Trujillo appeared before United States Magistrate Judge John Acosta for a detention/release hearing. The ICE Deportation Officer, serving as the government's case agent, sat at counsel table next to the Assistant United States Attorney. At the conclusion of the detention/release hearing, Judge Acosta stated, among other things, that:

The Pretrial Services Report reflects a background, putting aside the ICE detainer, that we often see when considering detention or release of an individual defendant. Ties to the community, family members present for an extended period of time, the individual present for an extended period of time, he has stable employment history, and he has at least two other non-family members who have come forward to talk on his behalf with respect to his personal characteristics, both of whom are decidedly favorable in that regard. I do not see, and I do not, Mr. [Assistant United States Attorney] Nyhus correct me if I'm wrong, I don't hear the government arguing that Mr. Alvarez–Trujillo is a danger to the community if released. The government's question was more to the risk of flight. I find on this record that the government hasn't met its burden that he is a flight risk if released. Whether or not ICE picks him up once he is released, that's up to ICE and that's not within my control. If there is a valid detainer or deportation order that's out there and ICE can execute it, Mr. Alvarez–Trujillo will...