United States v. Ailon-Ailon

• Decision Date: 22 November 2017
• Docket Number: No. 17-3178,17-3178
• Citation: 875 F.3d 1334
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mario AILON-AILON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

875 F.3d 1334

UNITED STATES of America, Plaintiff–Appellee,

v.Mario AILON-AILON, Defendant–Appellant.

No. 17-3178

United States Court of Appeals, Tenth Circuit.

November 22, 2017

Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, and Jennifer A. Amyx, Assistant Federal Public Defender, with counsel on the briefs), Kansas Federal Public Defender’s Office, Topeka, Kansas, for Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with counsel on the brief), United States Attorney’s Office, District of Kansas, Wichita, Kansas, for Plaintiff-Appellee.

Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges.

PER CURIAM.

We expedited consideration of this bail appeal to consider Mario Ailon-Ailon’s argument that the government has misinterpreted the word "flee" as it appears in 18 U.S.C. § 3142(f)(2), resulting in his illegal pre-trial detention. He argues that involuntary removal by the Bureau of Immigration and Customs Enforcement ("ICE") does not constitute flight of the sort that would justify detention. On initial consideration, a magistrate judge agreed and determined that Ailon-Ailon should not be detained before trial. On review of the magistrate judge, the district court reversed, ordering that he be detained. We conclude that the plain meaning of "flee" refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading. Exercising jurisdiction under 18 U.S.C. § 3145(c), we reverse and remand for further proceedings.

I

Ailon-Ailon, a citizen of Guatemala, has lived in Dodge City, Kansas, for at least seven years. In July 2017, he was arrested by ICE agents, who determined that he had reentered the United States illegally after he was ordered removed in 2001. Rather than immediately removing him again, ICE referred the matter for criminal prosecution. Ailon-Ailon was charged with one count of illegal reentry in violation of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). He is subject to a reinstated removal order, and ICE has lodged a detainer with the United States Marshals Service, requesting custody of Ailon-Ailon if he is released from the Marshals’ custody.

The government moved to detain Ailon-Ailon prior to trial on the ground that, if he was released, he would be removed from the country by ICE before trial. It argued that because he is subject to a reinstated order of removal, ICE would be obligated to remove him within ninety days. He would therefore not be present for trial. A magistrate judge denied the government’s motion, concluding that Ailon-Ailon was not a flight risk because "the risk of flight that the [Bail Reform Act] is concerned with is not a flight paid for by the U.S. Government, and if the Government can’t decide whether to keep him and prosecute him or deport him, that’s on them." The magistrate judge ordered that Ailon-Ailon be released subject to a ten-thousand dollar bond and certain conditions.

On appeal of the magistrate’s decision to the district court, the government reasserted its definition of "flee." By written order, the district court reversed, but specifically concluded in doing so that Ailon-Ailon was not a voluntary flight risk, and acknowledged that "[a]s a policy matter, ... if the United States government, through the Department of Justice, wanted [Ailon-Ailon] present for prosecution, it should not ... complain [about his] non-appearance due solely to the actions of the United States government, through the Department of Homeland Security." However, the district court found by a preponderance of the evidence that ICE would remove him before trial and that such removal qualified as flight. It ordered that Ailon-Ailon be detained. This appeal followed.

II

"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Bail Reform Act sets forth one such exception. Under that Act, individuals charged with a crime are generally "released on personal recognizance or upon execution of an unsecured appearance bond," 18 U.S.C. § 3142(a)(1), or they may be "released on a condition or combination of conditions" that will reasonably ensure their appearance in court and the safety of the community. § 3142(a)(2), (c)(1).

The Act establishes a two-step process for detaining an individual before trial. § 3142(f). First, the government may move for pre-trial detention if the defendant has been charged with certain enumerated offenses or "in a case that involves ... a serious risk that such person will flee; or ... a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror." Id. If the court determines that there is such a risk, the government must prove at the second step of the process that there "is no condition or combination of conditions" that "will reasonably assure the [defendant’s] appearance ... as required [as well as] the safety of any other person and the community." Id. The district court is directed to consider various factors in making this determination, including "the nature and circumstances of the offense charged," "the weight of the evidence against the person," "the history and characteristics of the person," and "the nature and seriousness of the danger to any person or the community that would be posed by the person’s release." § 3142(g).

In this case, the government did not allege that Ailon-Ailon represented a danger to the community; it relied solely on the risk that Ailon-Ailon would flee in urging pre-trial detention. The government bears the burden of proving a defendant is a flight risk by a preponderance of the evidence. United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). "We apply de novo review to mixed questions of law and fact concerning the detention or release decision, but we accept the district court’s findings of historical fact which support that decision unless they are clearly erroneous." Id. at 613.

III

Ailon-Ailon argues that the word "flee" as it appears in § 3142(f)(2) does not encompass involuntary removal. He contends the risk that he would be removed from the United States by ICE does not constitute a risk that he will flee prior to trial. This is an issue of first impression in this circuit.¹

District courts considering this argument have reached varying conclusions. Compare United States v. Ong, 762 F.Supp.2d 1353, 1363 (N.D. Ga. 2010) (denying pre-trial release on the ground that "there is a great likelihood that [the defendant] will be deported from the United States [pursuant to an ICE detainer and order of removal] prior to the conclusion of any criminal proceedings against him"), and United States v. Pantaleon-Paez, No. 07-292, 2008 WL 313785, at *4 (D. Idaho Feb. 1, 2008) (unpublished) ("In light of [ ]ICE’s imminent detention and subsequent deportation efforts in the event of Defendant’s release, it cannot be said that there is any condition or combination of conditions that will assure his appearance at trial."), with United States v. Barrera-Omana, 638 F.Supp.2d 1108, 1111 (D. Minn. 2009) ("The risk of nonappearance referenced in ... § 3142 has to involve an element of volition."), and United States v. Montoya-Vasquez, No. 4:08-cr-3174, 2009 WL 103596, at *5 (D. Neb. Jan. 13, 2009) (unpublished) (stating that § 3142 requires a finding that the defendant "would fail to appear by virtue of his own volition, actions and will"). In a slightly different context, the Ninth Circuit has suggested that "flee" as used in § 3142 involves an element of volition. See United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015) ("As a number of district courts have persuasively explained, the risk of nonappearance referenced in ... § 3142 must involve an element of volition.").

We agree with the latter set of courts that a risk of involuntary removal does not establish a "serious risk that [the defendant] will flee" upon which pre-trial detention may be based. § 3142(f)(2)(A). Having failed to make the threshold showing required by § 3142(f), the government’s detention motion fails at the first step of our analysis.

In interpreting a statute, "we look initially to the plain language of the provision at issue. If the words of the statute have a plain and ordinary meaning, we apply the text as written." Fruitt v. Astrue, 604 F.3d 1217, 1220 (10th Cir. 2010) (quotation, citation, and alteration omitted). The ordinary meaning of "flee" suggests volitional conduct. For example, Black’s Law Dictionary (10th ed. 2014) defines "flee" as: "To run away; to hasten off ... To run away or escape from danger, pursuit, or unpleasantness; to try to evade a problem ... To vanish; to cease to be visible ... To abandon or forsake." Webster’s Third New International Dictionary (1976) defines "flee" as "to run away from." As Ailon-Ailon noted at oral argument, one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the scene.

The structure of the Bail Reform Act supports this plain-language interpretation. See Homeland Stores, Inc. v. Resolution Tr. Corp., 17 F.3d 1269, 1273 (10th Cir. 1994) ("In interpreting a statutory provision, context and structure are, as in examining any legal instrument, of substantial import in the interpretive exercise." (quotation omitted)). "Congress chose not to exclude removable aliens from consideration for release or detention in criminal proceedings," but instead set forth "specific procedures to be followed when a judicial officer determines that a defendant is not a citizen of the United States or lawfully admitted for permanent residence." Santos-Flores, 794 F.3d at 1090-91. The Act...