United States v. Abrego

• Court: U.S. District Court — Middle District of Tennessee
• Writing for the Court: WAVERLY D. CRENSHAW, JR., UNITED STATES DISTRICT JUDGE
• Citation: United States v. Abrego, 792 F.Supp.3d 869 (M.D. Tenn. 2025)
• Docket Number: 3:25-cr-00115
• Decision Date: 23 July 2025
• Parties: UNITED STATES of America, Plaintiff, v. Kilmar Armando ABREGO Garcia, Defendant.

792 F.Supp.3d 869

UNITED STATES of America, Plaintiff, v. Kilmar Armando ABREGO Garcia, Defendant.

No. 3:25-cr-00115

United States District Court, M.D. Tennessee, Nashville Division

Filed July 23, 2025

Robert E. McGuire, Assistant U.S. Attorney, DOJ-United States Attorney's Office, Nashville, TN, Jason Harley, Pro Hac Vice, Assistant U.S. Attorney, for Plaintiff.

Rascoe S. Dean, Sherrard Roe Voigt & Harbison, PLC, Nashville, TN, Dumaka Shabazz, Richard L. Tennent, William Gilbert Allensworth, Public Defenders, Federal Public Defender's Office, Nashville, TN, David Patton, Jenna M. Dabbs, Pro Hac Vice, Sean Hecker, Pro Hac Vice, Hecker Fink LLP, New York, NY, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., UNITED STATES DISTRICT JUDGE

After "ha[ving] lived safely in the United States with his family for a decade and ha[ving] never been charged with a crime[,]" Noem v. Abrego Garcia, 604 U.S. —, 145 S. Ct. 1017, 1018, 225 L.Ed.2d 655 (2025), Kilmar Armando Abrego Garcia ("Abrego") returned to the United States of America from his involuntary and "improper[ ]" stay in El Salvador. Id. The United States District Court of Maryland issued an order requiring the United States Secretary of Homeland Security, the Attorney General of the United States, the United States Secretary of State, the Acting Director of U.S. Immigration and Customs Enforcement ("ICE"), the Acting Executive Associate Director of ICE Enforcement and Removal Operations, and the Director of ICE's Baltimore Field Office to "facilitate" Abrego's return. See Abrego Garcia v. Noem, 2025 WL 1024654, at *1 (D. Md. Apr. 4, 2025); amended, 2025 WL 1085601 (D. Md. Apr. 10, 2025); see also Abrego Garcia v. Noem, 777 F.Supp.3d 501 (D. Md. Apr. 6, 2025) (Memorandum Opinion in support of April 4, 2025 order). The United States Court of Appeals for the Fourth Circuit did not disturb the lower court's order, denying the Government's motion to stay the district court's order pending appeal. See Abrego Garcia v. Noem, 2025 WL 1021113, at *1 (4th Cir. Apr. 7, 2025). Yet, Abrego remained in El Salvador. Even after the Supreme Court of the United States affirmed the district court's instruction that the Government "facilitate" Abrego's "release from custody in El Salvador," Abrego continued to wait to return home. Abrego Garcia, 145 S. Ct. at 1018. In the meantime, the Government presented its criminal case against Abrego to a grand jury in the Middle District of Tennessee. On May 21, 2025, the grand jury filed a two-count Indictment against Abrego. When an arrest warrant for Abrego issued, the Government effectuated his return, arrested him on June 6, 2025, and brought him to Tennessee.

The Magistrate Judge has ordered Abrego's release. The Government disagrees and has filed a Motion for Revocation of Release Order (Doc. No. 45), which has been fully briefed (Doc. Nos. 70, 79, 89). The Court held an evidentiary hearing on July 16, 2025. Based on the June 13, 2025 and July 16, 2025 evidentiary hearings, the Court will deny the Government's Motion. (Doc. No. 45). Abrego should be released under conditions to be set by the Magistrate Judge.

I. BACKGROUND¹

At the time the Court issued its Memorandum Opinion and Order denying the Government's Motion to Stay the decision of the Magistrate Judge (Doc. Nos. 55, 56), it only considered the issue of whether the Government was entitled to a detention hearing. Following the Court's ruling, the Magistrate Judge informed the parties at the June 25, 2025 hearing about the conditions of Abrego's release (see Doc. No. 62). The parties have now briefed whether there are conditions for Abrego's release alongside Government's appeal challenging the Magistrate Judge's release order (see Doc. Nos. 70, 79). Accordingly, the record is now complete for the Court to consider both (1) whether the Government is entitled to a detention hearing, and (2) if so, whether there are no set of conditions that warrant Abrego's release pending trial.

Abrego remains detained, notwithstanding this Court's denial of the Government's Motion to Stay (Doc. Nos. 55, 56). While he initially opposed the Government's Motion to Stay his release order (Doc. Nos. 46, 49), he moved to delay the Magistrate Judge issuing her release order until this Court's July 16, 2025 evidentiary hearing. (Doc. No. 63). The Magistrate Judge granted Abrego's Motion (Doc. No. 63) and postponed issuing the release order (and conditions of release) until this Court decided the Government's Motion for Revocation. (Doc. No. 67).

During the July 16, 2025 evidentiary hearing, the Government again called the same witness who testified before the Magistrate Judge: Homeland Security Agent Peter T. Joseph ("Agent Joseph"). He supplemented his prior testimony based on his ongoing investigation in the following ways: (1) he testified that he has now personally interviewed all officers that responded to the November 30, 2022 traffic stop, although he did not offer much information about what those interviews revealed; (2) he discussed exhibits showing that the car Abrego drove on November 30, 2022 was registered to the first cooperating witness ("CW-1"),² who pled guilty to Aiding and Abetting the Illegal Transportation of an Alien within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii); (3) he discussed an exhibit showing the phone number Abrego provided to officers responding to the November 30, 2022 traffic stop; (4) he discussed an exhibit of Abrego's phone records showing that he called CW-1, his "boss," in Texas before, during and after the traffic stop; (5) he introduced an iCloud backup of CW-1's phone showing a contact entry with the name "Kitmar Chofer," which Agent Joseph believed to be a reference to Abrego; (6) he discussed a traffic citation Abrego received in Virginia in October 2021; (7) he testified about a recent interview with the second female cooperating witness ("FC-2"), who heard Abrego say that he fled El Salvador as a teenager after taking part in a murder of a rival gang member's mother; (8) he testified that he has been unable to corroborate FC-2's statement about why Abrego fled El Salvador; and (9) he discussed an exhibit showing the identities and immigration status of six of the nine passengers who were in the vehicle during the November 30, 2022 traffic stop. The Government also submitted the FBI Cellular Analysis Survey Team CAST report ("CAST report"), which tracked Abrego's path of travel throughout the United States around the time of the November 30, 2022 traffic stop.

During the hearing, Abrego challenged Agent Joseph's credibility and the thoroughness of his work, because of: (1) the close familial bond between CW-1, the second cooperating witness ("CW-2"), and the first female cooperating witness ("FC-1"); (2) his failure to read three interviews CW-1 had with Homeland Security Investigations ("HSI") in April 2025; (3) his failure to listen to recorded phone calls between CW-1 and CW-2; and (4) his failure to consider the witnesses' motivations for their testimony and the suspicious phrasing in their statements.

Abrego supplemented the record with the HSI interview notes on CW-1's and CW-2's various interviews prepared by Agent Joseph and other HSI agents. The interview notes show that HSI agents interviewed CW-1 on April 22, 24, and 29, 2025 about his and others' involvement in a human smuggling conspiracy. During the second interview, CW-1 expressed that he would not provide HSI more information unless he got protection for him and his family. Agent Joseph later interviewed one of his family members, CW-2. During those interviews, CW-1 told HSI agents that he was born in El Salvador, met Abrego roughly ten years ago when he was living in Maryland, and later moved to Texas to start a taxi service because he had clients requesting that he transport people to various states, including New York, New Jersey, and Virginia.

CW-1 gave HSI agents information about his human smuggling business, both generally and Abrego. For example, he informed the agents that his taxi service smuggled undocumented individuals, who would typically pay $350 to $500 dollars each to be transported. He also stated that he saved drivers' contact names in his phone as "Driver" or "Chofer." He further informed the HSI agents that Abrego worked for his business, and had been stopped by law enforcement in 2021 and 2022 while transporting undocumented individuals. Specifically, he confirmed that Abrego had previously been stopped in Virginia on I-81 and in Georgia in 2021 or 2022 and that he had been stopped in 2022 with seven to nine individuals in his vehicle. He told agents that Abrego was paid anywhere from $1,300 to $1,700 per trip. CW-1 did not tie Abrego to any gang affiliations during his first two interviews. During the third, CW-1 stated that he did not notice anything to suggest that Abrego was part of a gang.

Agent Joseph conducted CW-1's fourth and fifth HSI interviews on May 7 and 15, 2025. Again, CW-1 confirmed his business relationship with Abrego, and that the individuals Abrego had in his vehicle on November 30, 2022 were being smuggled. CW-1 also confirmed that Abrego was driving CW-1's vehicle during the November 30, 2022 stop. He also further explained his business relationship with Abrego, namely that he would give Abrego referrals to transport undocumented individuals for $1,000 to $1,500 a trip. During the fifth interview, CW-1 identified a photo of one of the primary individuals who funneled undocumented persons to CW-1's business. He told Agent Joseph that the individual had complained on three or four occasions about Abrego's treatment of women and minor females on trips. During that interview, he also stated for the first time that Abrego would conduct his transports with his wife and children to obscure his illegal activities.

During the interviews with Agent Joseph, CW-1 provided additional information about Abrego's purported...