United States v. Avelar-Castro

• Decision Date: 18 June 2014
• Docket Number: Criminal Action No. 14–061.
• Citation: 27 F.Supp.3d 686
• Parties: UNITED STATES of America v. Melvin Josue AVELAR–CASTRO.
• Court: U.S. District Court — Eastern District of Louisiana

27 F.Supp.3d 686

UNITED STATES of America

v.Melvin Josue AVELAR–CASTRO.

Criminal Action No. 14–061.

United States District Court, E.D. Louisiana.

Signed June 18, 2014.

Michael M. Simpson, U.S. Attorney's Office, New Orleans, LA, for United States of America.

ORDER AND REASONS

MARTIN L. C. FELDMAN, District Judge.

Before the Court is Melvin Josue Avelar–Castro's motion to dismiss the indictment. For the reasons that follow, the motion is DENIED.

Background

Members of the Immigration and Customs Enforcement's New Orleans Fugitive Operations Team were conducting a “Knock and Talk” at 829 Grove Avenue, in Metairie, Louisiana on November 5, 2013. When the team knocked on the door to the residence, Mario Rodriguez–Meraz—the team's purported target—answered. The team reported that, after the officers identified themselves, Mr. Rodriguez–Meraz invited them in.¹ While inside, the team encountered the defendant, Mr. Rodriguez–Meraz's roommate, Melvin Josue Avelar–Castro, and questioned him about his immigration status. When it was determined that he was illegally in the country, Mr. Avelar–Castro was arrested, as was Mr. Rodriguez–Meraz. That same day, Mr. Avelar–Castro's pre-removal order was reinstated and ICE issued a warrant for Mr. Avelar–Castro's removal. He was transported to South Louisiana Correctional Center in Basile, Louisiana, where ICE houses immigrant detainees it arrests.

About one month later, the U.S. Probation Office petitioned this Court for an arrest warrant; the Probation Office alleged that Mr. Avelar–Castro violated the terms of his supervised release, in connection with his sentence in Criminal Action Number 11–20,² when he illegally returned to the United States and his illegal presence was discovered during the Knock and Talk in Metairie. The arrest warrant was issued the next day.

Meanwhile, on December 10, 2013, Mr. Rodriguez–Meraz was deported to Honduras. Almost two months later, on February 3, 2014, Mr. Avelar–Castro made his initial appearance before a U.S. magistrate judge. Two days later, the government filed a rule to revoke the defendant's supervised release. The defendant appeared for his revocation hearing on March 26, at which time defense counsel requested a continuance to investigate whether Mr. Avelar–Castro's rights had been violated. The Court continued the revocation hearing, and ordered counsel to submit papers addressing whatever issues defense counsel's investigation had revealed. Two days later on March 28—almost five months after Mr. Avelar–Castro's arrest—Mr. Avelar–Castro was indicted for illegal reentry by a previously deported alien, in violation of 8 U.S.C. § 1326(a), in Criminal Action Number 14–61 “G”. Criminal Action Number 14–61 has since been transferred to this Section of Court; the pretrial conference is presently scheduled for July 30, 2014 and the jury trial is scheduled for August 18, 2014.

The defendant now contends that his Fifth Amendment right to Due Process and his Sixth Amendment right to compulsory process have been violated by the government's almost five-month delay in seeking an indictment during which time Rodriguez–Meraz—a witness whom the defendant insists would testify that he did not give his consent to enter his residence—was deported back to Honduras.³

I.

Mr. Avelar–Castro seeks to dismiss the indictment on two (related) grounds: (1) the government unreasonably delayed in seeking an indictment, in violation of his Fifth Amendment right to due process; and (2) the government deported a material witness, in violation of his Sixth Amendment right to compulsory process.

A.

“No person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V.

“[T]he court may dismiss an indictment ... if unnecessary delay occurs in: (1) presenting a charge to a grand jury....” Fed.R.Cr.P. 48(b)(2). The statute of limitations provides the primary protection against pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (noting that preindictment delay is “wholly irrelevant ... as far as the Speedy Trial Clause of the Sixth Amendment is concerned.”); see also United States v. Smith, 487 F.2d 175, 177 (5th Cir.1973) (citation omitted) (“[A]bsent a showing of extreme prejudice amounting to a Fifth Amendment denial of due process, the commencement of prosecution is controlled exclusively by the applicable statute of limitations.”). But the Fifth Amendment Due Process Clause plays “a limited role ... in protecting against oppressive delay.” Lovasco, 431 U.S. at 789, 97 S.Ct. 2044 (holding that prosecuting a defendant after investigative delay does not deprive him of due process, even if the defendant was somewhat prejudiced by the time lapse). For pre-indictment delay to violate due process, the accused bears the burden of showing that (1) the delay was intentionally brought about by the government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution, or for some other bad faith purpose;⁴ and (2) the delay caused actual, substantial prejudice to the accused's defense. United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir.1996) (en banc), cert. denied, 519 U.S. 1076, 117 S.Ct. 736, 136 L.Ed.2d 676 (1997). To show prejudice, “the defendant must offer more than mere speculation of lost witnesses, faded memories or misplaced documents; he must show an actual loss of evidence that would have aided the defense and that cannot be obtained from other sources.”United States v. Jackson, 549 F.3d 963, 969 (5th Cir.2008) (quoting United States v. Gulley, 526 F.3d 809, 819–20 (5th Cir.2008), cert. denied, 555 U.S. 867, 129 S.Ct. 159, 172 L.Ed.2d 116 (2008) ). Notably—given that the accused must show actual, and not merely speculative, prejudice—the Fifth Circuit has instructed that

in all but the very clearest and most compelling cases, the district court, rather than grant ... a motion [to dismiss the indictment] prior to trial, should carry it with the case, and make the determination of whether actual, substantial prejudice resulted from the improper delay in light of what actually transpired at trial.

Crouch, 84 F.3d at 1516 ; Gulley, 526 F.3d at 819–20.

B.

Although Mr. Avelar–Castro refers generically to the unreasonable delay between his arrest and indictment as one constitutional ground entitling him to relief, he more specifically targets Mr. Rodriguez–Meraz's deportation and the testimonial evidence of which he claims he is deprived as a result. Determining whether a due process violation has resulted from pre-indictment delay and resolving whether there has been a violation of an accused's Sixth Amendment right to compulsory process are similar inquiries: they are both prejudice and, in most Circuits, bad faith, inquiries.

The Sixth Amendment guarantees a criminal defendant compulsory process “for obtaining Witnesses in his favor.” U.S. CONST. amend. VI. Compulsory process gives criminal defendants “the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before the jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 55–56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (emphasis added). When the government deports an illegal alien before defense counsel has the opportunity to interview the alien, the constitutional right of compulsory process is implicated. See United States v. Valenzuela–Bernal, 458 U.S. 858, 866, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) ; Cf. Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (citing Valenzuela–Bernal and acknowledging cases addressing loss of evidence attributable to the government in “what might loosely be called the area of constitutionally guaranteed access to evidence”).

The mere fact that the government deports illegal alien witnesses, thereby making them unavailable to the defense, is not sufficient, standing alone, to show a violation of the compulsory process clause. Valenzuela–Bernal, 458 U.S. at 866–69, 102 S.Ct. 3440 (acknowledging the tension between the Sixth Amendment and the Executive Branch's responsibility to faithfully execute the immigration laws that require prompt deportation of illegal aliens).⁵ Instead, most U.S. Circuit Courts of Appeals have instructed that, to prove a violation of the compulsory process clause, the defendant must (1) make “a plausible showing that the testimony of the deported witness would have been material and favorable to [the] defense in ways not merely cumulative to the testimony of available witnesses”; and (2) show bad faith on the part of the government in deporting the witness.⁶

The Fifth Circuit has applied the first element of this test, and acknowledges that other courts apply a second, bad faith element.

United States v. Gonzales, 436 F.3d 560, 578 (5th Cir.2006) (noting that “[t]his circuit has not yet fully defined the contours of a claim under Valenzuela–Bernal ”).However, the Fifth Circuit has left open whether or not it will “ever adopt[ ] the second prong, requiring a showing of bad faith by government officials.” Id. Nevertheless, in Gonzales, the Fifth Circuit noted that the Seventh, Ninth, and Tenth Circuits require that the defendant establish, as a second element, bad faith on the part of the government. The panel in Gonzales also cited to United States v. Sierra–Hernandez, 192 F.3d 501, 503 (5th Cir.1999), in which another panel of the Fifth Circuit had “discussed the first prong, acknowledged the existence of the second prong, and held there was no [constitutional] violation, noting that neither prejudice nor lack of good faith was shown, but not expressly stating that the failure to show lack of good faith was of itself fatal to the claim.” See id.; see also United States v. Calderon–Lopez, 268 Fed.Appx. 279, 291–92 (5th Cir.2008) (declining to address whether the government deported witness in bad faith...