United States v. Castillo

• Decision Date: 06 May 2021
• Docket Number: Criminal No. 1:19-cr-10279-IT
• Citation: 537 F.Supp.3d 120
• Parties: UNITED STATES of America, v. Jesus CASTILLO, Defendant.
• Court: U.S. District Court — District of Massachusetts

537 F.Supp.3d 120

UNITED STATES of America,

v.Jesus CASTILLO, Defendant.

Criminal No. 1:19-cr-10279-IT

United States District Court, D. Massachusetts.

Signed May 6, 2021

Theodore B. Heinrich, Assistant US Attorney, United States Attorney's Office, Boston, MA, for United States of America.

Joshua Hayne, Public Defender, Federal Public Defender Office, Boston, MA, for Defendant.

MEMORANDUM & ORDER

TALWANI, D.J.

Defendant Jesus Castillo was indicted on one count of conspiracy to distribute and to possess with the intent to distribute oxycodone in violation of 21 U.S.C. § 846. Indictment 1-2 [#1]. Now before the court is Defendant's Motion to Dismiss [#146] the indictment pursuant to Federal Rules of Criminal Procedure Rule 12(b) based on his removal from the United States. For the reasons that follow, the Motion [#146] is ALLOWED and the Indictment [#1] is DISMISSED WITHOUT PREJUDICE as to Castillo.

I. Factual and Procedural Background

This drug conspiracy case arose from the Drug Enforcement Agency's ("DEA") investigation into Michael Spinola and his associates who were suspected of trafficking large quantities of controlled substances in Massachusetts. Gov't Opposition to Mot. Dismiss ("Opp'n") 1 [#151]; Lima Affidavit in Support of Wiretap Application ¶¶ 8-9, 17-39 [#141-1]. The DEA received authorization for a wiretap of Spinola's cell phone on July 14, 2017, see Order Authorizing the Interception of Wire Communications USAO-000450-459 [#141-1], and in 2018, received four subsequent wiretap authorizations for two phones connected with Spinola. See Second Order Authorizing Interception of Wire Communications USAO-000557-569 [#141-2]; Third Order Authorizing Interception of Wire Communications USAO-000656-667 [#141-3]; Fourth Order Authorizing Interception of Wire Communications USAO-000752-763 [#141-4]; Fifth Order Authorizing Interception of Wire Communications USAO-000851-860 [#141-5]. The government states that its wiretap surveillance showed Curly Kelly "obtained oxycodone in Texas, supplied it to Spinola, and that on June 23, 2018, Spinola distributed [the oxycodone] to Castillo." Opp'n 1 [#151]. Shortly thereafter, Castillo was stopped and arrested by the Massachusetts State Police on state drug charges. Id.; see also Mot. to Dismiss ("Mot.") 1-2 [#146].¹

After Defendant posted bail in the state drug case, he was taken into U.S. Immigration and Customs Enforcement ("ICE") custody. Mot. 2 [#146]; Opp'n 2 [#151]. ICE then referred Defendant to the U.S. Attorney's Office for criminal prosecution of the immigration offense, and on August 2, 2018, Defendant was indicted for unlawfully reentering the United States after being removed, in violation of 8 U.S.C. § 1326. Mot. 2 [#146]; see United States v. Castillo-Martinez, 18-CR-10247-NMG, [#1]. Defendant agreed to voluntary detention but moved to dismiss the Indictment on the ground that the underlying removal order was unlawful, see Motion to Dismiss [#33], 18-CR-10247-NMG; after the motion was denied, Defendant conditionally pleaded guilty to the unlawful re-entry indictment. Mot. 2 [#146]; see Notice of Reservation of Appellate Rights [#53], 18-CR-10247-NMG. Prior to sentencing, ICE lodged a detainer. Mot. 2 [#146] (citing p. 2 of PSR from the unlawful reentry case).

On September 10, 2019, Defendant was sentenced to time served in the re-entry case. Id.; see also Order and Judgment [#63], 18-CR-10247-NMG. Defendant's appeal of that conviction is pending. See United States v. Castillo-Martinez, No. 19-1971 (1st. Cir. filed Sept. 30, 2019).

Meanwhile, on August 7, 2019, Defendant was indicted in this drug conspiracy case.² Mot. 2 [#146]. He was arraigned on the morning of September 10, 2019, id.; Elec. Clerk's Notes [#29], and initially detained on the government's motion. Order of Temporary Detention [#31]. Following a contested detention hearing, the Magistrate Judge noted that "Castillo has no legal status in the United States" and that "[t]he Probation Office reports that there is a final order of removal," but concluded, after considering the factors set forth in 18 U.S.C. § 3142, that the government had not met its burden regarding detention and that "[a]ny [flight] risk associated with [Castillo's] lack of legal status in the United States may also be mitigated with appropriate conditions of release." Order on Government's Motion for Detention 3-4 [#53]. On November 4, 2019, after a further hearing concerning conditions of release, the Magistrate Judge issued an Order Setting Conditions of Release [#56], including a condition that Defendant not leave the District of Massachusetts. The government did not appeal. Mot. 2 [#146].

Defendant was not released on November 4, 2019, and was instead moved into ICE administrative custody pursuant to the ICE detainer. Mot. 2 [#146]; Opp'n 2 [#151]. ICE then initiated removal proceedings, and Defendant sought withholding of his removal under the Convention Against Torture. See Order of the Immigration Judge [#146-1]. An administrative judge held a hearing on March 16, 2020, and on August 12, 2020, issued a written order denying withholding of removal. Id. On October 20, 2020, Defendant was removed from the United States. Mot. 3 [#146]; Opp'n 2 [#151].

Defendant's counsel informed the court during a November 6, 2020 pretrial conference that Castillo had been removed from the United States, Elec. Clerk's Notes [#124], and on January 28, 2021, filed the Motion to Dismiss [#146].

II. Legal Standard

Federal Rules of Criminal Procedure Rule 12(b)(1) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." "Pure questions of law are properly considered on a pretrial motion to dismiss." United States v. Gomez-Ramirez, 365 F. Supp. 3d 226, 230 (D. Mass. 2019) (citing United States v. Pope, 613 F.3d 1255, 1260 (10th Cir. 2010) ). However, motions to dismiss indictments which rely on disputed facts, see United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), or motions challenging the sufficiency of the evidence underlying an indictment, see United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011), should be denied.

III. Discussion

Defendant's Motion [#146] argues that his removal from the United States merits dismissal for four reasons: (1) the government abandoned its drug prosecution; (2) the government violated federal immigration regulations; (3) the government violated Defendant's rights under the Bail Reform Act ("BRA"), 18 U.S.C. § 3141, et seq. ; and (4) the government violated his Fifth Amendment Due Process right to prepare a defense and Sixth Amendment right to the assistance of counsel. Defendant further argues that the "totality of the circumstances ... calls for a dismissal with prejudice." Mot. 15 [#146].

The government disputes all four grounds and argues that if the indictment is dismissed, it should be without prejudice.

In considering the parties’ arguments, the court notes that the question at issue in many of the cases on which the parties rely – whether ICE may take custody of a criminal defendant pending trial – is a question this court does not need to reach; the question posed here, in contrast, is what, if anything, should be done where ICE removes a defendant after arraignment and before trial.

A. Violation of Federal Immigration Regulations

Defendant asserts that by removing him, the government violated two regulations under the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101, et seq. Mot. 9-10 [#146]. The first regulation, 8 C.F.R. § 215.2, states that "[n]o alien shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the provisions of § 215.3." Section 215.3, in turn, describes those categories of noncitizens "whose departure shall be deemed prejudicial to the interests of the United States," to include:

[a]ny alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States. Provided, [t]hat any alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part.

8 C.F.R. § 215.3(g) (emphasis in original).

The government contends that these regulations apply only to voluntary departures and not to Defendant's removal. Opp'n 13 [#151] (citing United States v. Lett, 944 F.3d 467, 473-74 (2d Cir. 2019)) ; United States v. Marinez-Patino, No. 11-CR-064, 2011 WL 902466, at *6 (N.D. Ill. Mar. 14, 2011) ("[T]he legislative authority for Section 215 is contained in 8 U.S.C. § 1185(a). This statute ... provides for regulations governing an alien's ability to ‘depart from’ or ‘enter’ the United States, not the government's ability to ‘remove’ an alien (a topic which is separately addressed in 8 U.S.C. § 1231.)." (internal citation omitted)).

In Lett, the defendant, who sought release from ICE custody, argued that these regulations barred ICE from deporting criminal defendants during the pendency of their criminal cases, and therefore barred ICE from detaining such defendants. 944 F.3d at 472. The Second Circuit rejected his argument for release, concluding that "these regulations merely prohibit aliens who are parties to a criminal case from departing the United States voluntarily ...." Id. at 472-73 (citing United States v. Ailon-Ailon, 875 F.3d 1334, 1339 (10th Cir. 2017) (referring to 8 C.F.R. § 215.2(a) as governing "voluntary departure") (emphasis in original)); see also United States v. Baltazar-Sebastian, 990 F. 3d 939, 946 (5th Cir. 2021) ("[E]very circuit to consider the issue agrees the regulations concern an alien's own actions, not those of ICE.") (citations omitted).

The...