United States v. Castro

• Decision Date: 16 December 2021
• Docket Number: 21 CR 661
• Parties: UNITED STATES OF AMERICA v. JUAN ANTONIO GALLARDO CASTRO, also known as “Johnny&rdquo
• Court: U.S. District Court — Northern District of Illinois

UNITED STATES OF AMERICA
v.
JUAN ANTONIO GALLARDO CASTRO, also known as “Johnny”

No. 21 CR 661

United States District Court, N.D. Illinois, Eastern Division

December 16, 2021

MEMORANDUM OPINION AND ORDER

Sunil R. Harjani United States Magistrate Judge

This matter comes before the Court on the Government's request that Defendant be removed to the Eastern District of Tennessee to face conspiracy charges under 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count One) and 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h) (Count Three) pursuant to an indictment filed on October 26, 2021 (“Indictment”). The only contested issue at this time is identity, and upon the request of the Defendant, an identity hearing was held on November 3, 2021. This case also presents two novel questions of law that the Seventh Circuit has not addressed. The first question is what standard of proof applies in an identity hearing conducted pursuant to Federal Criminal Rule of Procedure 5(c)(3)(D)(ii). The second issue is whether the fact that the defendant has the same name as the person charged in the indictment creates a rebuttable presumption of identity. For the reasons stated below, the Court finds that probable cause is the appropriate standard at an identity hearing on an out-of-district indictment, and that an indictment against an individual with the same name as the Defendant does not establish a rebuttable presumption of identity. Because the Government has satisfied its burden to show probable cause to believe that the Defendant is the same person named in the October 26, 2021 indictment issued in the Eastern District of Tennessee, the Court grants the Government's request to transfer Defendant to the Eastern District of Tennessee.

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BACKGROUND

On or about October 26, 2021, Juan Antonio Gallardo Castro, also known as “Johnny, ” was indicted in the Eastern District of Tennessee on charges of conspiracy to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846, 841(a)(1), 841(b)(1)(A) (Count One) and conspiracy to commit money laundering, in violation of Title 18, United States Code, Sections 1956(a)(1)(A)(i) and 1956(h) (Count Three). On October 27, 2021, Defendant was arrested in Chicago, Illinois. On October 28, 2021, he appeared before the Court for an initial removal hearing. During his appearance, Defendant waived his right to a detention hearing without prejudice to reassertion in the charging district but contested identity, claiming that he is not the same person named in the Indictment. Since an indictment has already issued, the only remaining issue before the Court is Defendant's identity. Fed. R. Crim. P. 5(c)(3)(C)-(D); Fed. R. Crim. P. 5.1(a)(2); Kaley v. United States, 571 U.S. 320, 329 (2014).

Pursuant to Federal Rule of Criminal Procedure 5(c)(3)(D)(ii), the Court held an identity hearing on November 3, 2021 to determine whether removal of Defendant to the Eastern District of Tennessee would be proper. At the identity hearing, the Government called Thomas Garrison, a Special Agent with the Tennessee Bureau of Investigation and Task Force Officer with the Federal Bureau of Investigation, and James A. Healy, a Task Force Officer with the Drug Enforcement Administration. The Government also offered several exhibits, including the October 26, 2021 arrest warrant for Juan Antonio Gallardo Castro, a/k/a “Johnny, ” the October 26, 2021 Indictment, a photograph from a U.S. visa record for Juan Antonio Gallardo Castro taken in approximately 2016, a Mexican identification card that included a photograph of the Defendant and listed his name as “Juan Antonio Gallard Castro” that was recovered from Defendant at the

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time of his arrest, and Defendant's booking photograph from October 27, 2021. Defendant presented no witnesses or documents at the identity hearing, but cross-examined the Government's witnesses. At the conclusion of the hearing, the Court ordered the Government to file a brief setting forth its position regarding identity by November 12, 2021. Defendant requested and was granted until November 29, 2021 to file his response brief. Having reviewed the evidence submitted at the identity hearing and the briefs and authorities cited by the parties, the Court finds that Defendant is the same person named in the Indictment and arrest warrant.

DISCUSSION

Rule 5 of the Federal Rules of Criminal Procedure governs initial appearances upon an arrest. As Defendant was arrested in a district other than where the offense was allegedly committed, Rule 5(c)(3) provides the procedures that apply. Fed. R. Crim. P. 5(c)(3). Specifically, Rule 5(c)(3) requires a magistrate judge to, among other things, transfer a defendant to the district where the offense was allegedly committed if: (1) the government produces a reliable electronic format of the warrant and (2) “the judge finds that the defendant is the same person named in the indictment . . . or warrant.” Fed. R. Crim. P. 5(c)(3)(D). “Rules 5 and 40 guarantee that a defendant will not forcibly be brought to a different state until the government produces a warrant and a judge determines that the defendant is the same person named in the warrant, information, or indictment.” United States v. Vega, 438 F.3d 801, 803 (7th Cir. 2006).

One of the primary purposes of removal proceedings before transporting a defendant from one federal district to another for trial is to “guard against improvident removals by requiring sufficient grounds therefore.” United States v. Green, 499 F.2d 538, 540 (D.C. Cir. 1974); see also Original Advisory Committee Note 2 to Fed. R. Crim. P. 40 (“The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial.”).

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These safeguards makes sense both practically and historically. Practically, “transportation of a person to a distant point for trial involves serious consequences.” Toth v. Talbott, 114 F.Supp. 468, 469 (D.D.C. 1953) (considering removal by court-martial without a hearing) rev'd on other grounds 215 F.2d 22 (D.C. Cir. 1954), rev'd sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). Historically, “[i]t is contrary to the principles of American institutions to remove a person to a distant point for trial without express authority to do so and without appropriate safeguards provided by statute. In fact, one of the grievances of the Colonists that led to the American Revolution was a threat on the part of the British authorities to remove certain persons from the Colonies to the British Isles for trial.” Id. at 469-70 n. 2 (noting that the “Declaration of Independence in enumerating the grievances against the British Crown specifies: ‘transporting us beyond Seas to be tried for pretended offenses.'”). Obviously when a defendant's arrest takes place in same district where the offense was allegedly committed, the situation does not come within the purpose of the rule. Thus, there is no pretrial procedure for identity hearings when a defendant is arrested within the district where the offense was allegedly committed. The procedure is one uniquely tied to out-of-district arrests.

A. The Standard for Determining Identity Under Rule 5(c)(3)(D)(ii)

In this case, the Government has produced an arrest warrant for an individual named Juan Antonio Gallardo Castro, also known as “Johnny, ” and the only issue before the Court is the question of identity. At the outset, the Court notes that Rule 5 does not specify the standard which a court should apply when determining whether an arrestee is the person named in an indictment. Likewise, neither the Seventh Circuit nor a court in this district has addressed the standard for determining identity for purposes of removal pursuant to an indictment in a Rule 5(c)(3)(D)(ii) proceeding. The Government cites a Seventh Circuit case decided in 1937, Trawczynski v. United States,

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89 F.2d 922 (7th Cir. 1937). However, in Trawczynski, the Seventh Circuit did not squarely consider the standard applicable in an identity/removal hearing where the sole issue is whether the government has established identity. Instead, when it analyzed the proper procedure in removal proceedings, it analyzed whether from all the evidence probable cause had been shown that the defendant was guilty of the offense charged in the indictment. Id. at 923. The defendant argued that the district judge erred by proceeding on the theory that a case of probable cause was established by the indictment in addition to proof of the identity of accused. Id. The Seventh Circuit held that in a removal, the government “establishes a prima facie case of probable cause by proof of an indictment which properly charges the defendant with the commission of a crime against the United States, together with proof of identity.” Id. The Trawczynski court continued, however, by stating that “the defendant is entitled to offer any proof otherwise competent with a view of overcoming such prima facie case” and the court will “determine from all the evidence whether probable cause has been shown.” Id. Significantly, the Trawczynski court did not address whether the probable cause standard applies to a preliminary proceeding where the only issue is the identity of the arrestee. Moreover, Trawczynski predates Rule 5(c)(3) (and its predecessor Rule 40(b)(3)). In 1944, Rule 40 of the Federal Rules of Criminal Procedure was adopted to govern proceedings for removal, under which “probable cause is established, beyond the purview of judicial review, by the grand jury's return of the indictment.” United States v. Perkins, 433 F.2d 1182, 1187 (D.C. Cir. 1970); see Advisory Committee Note 3 to 1944 adoption of Fed. R. Crim. P. 40 (“[I]n case of an indictment, the grand jury, which is an arm of the court, has...