United States v. Garcia

• Court: U.S. District Court — Middle District of Tennessee
• Writing for the Court: BARBARA D. HOLMES, United States Magistrate Judge
• Citation: United States v. Garcia, 787 F.Supp.3d 830 (M.D. Tenn. 2025)
• Docket Number: Case No. 3:25-cr-00115-1
• Decision Date: 22 June 2025
• Parties: UNITED STATES v. Kilmar Armando ABREGO Garcia
• topic: Criminal Law,Civil Procedure

787 F.Supp.3d 830

UNITED STATES v. Kilmar Armando ABREGO Garcia

Case No. 3:25-cr-00115-1

United States District Court, M.D. Tennessee

Filed June 22, 2025

Robert E. McGuire, Assistant U.S. Attorney, DOJ-United States Attorney's Office, Nashville, TN, for United States.

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 Kilmar Armando Abrego Garcia.

MEMORANDUM OPINION

BARBARA D. HOLMES, United States Magistrate Judge

The defendant Kilmar Armando Abrego Garcia ("Abrego")¹ appeared with counsel, Federal Public Defender Dumaka Shabazz and Assistant Federal Public Defenders Richard Tennent and Will Allensworth, on June 13, 2025, for arraignment and a hearing on the government's motion for detention. (Docket No. 8.) Acting U.S. Attorney Robert McGuire and Jeremy Franke, Deputy Director of Joint Task Force Vulcan, appeared for the United States (the "government").

I. INTRODUCTION

Perhaps the sole circumstance about which the government and Abrego may agree in this case is the likelihood that Abrego will remain in custody regardless of the outcome of the issues raised in the government's motion for detention. Either Abrego will remain in the custody of the Attorney General or her designee pending trial if detained under the Bail Reform Act or he will likely remain in U.S. Immigration and Customs Enforcement ("ICE") custody subject to anticipated removal proceedings that are outside the jurisdiction of this Court. That suggests the Court's determination of the detention issues is little more than an academic exercise. That suggestion is understandable. But the foundation of the administration of our criminal law depends on the bedrock of due process. That due process demands that every person charged with a federal crime be afforded a presumption of innocence unless proven guilty beyond a reasonable doubt and that deprivation of an individual's liberty prior to trial can occur only in carefully limited circumstances with all the procedural safeguards afforded by the Bail Reform Act. Abrego, like every person arrested on federal criminal charges, is entitled to a full and fair determination of whether he must remain in federal custody pending trial. The Court will give Abrego the due process that he is guaranteed.

II. DETERMINATIONS UNDER BAIL REFORM ACT

As required by the Bail Reform Act, the Court has reviewed the evidence presented at the June 13 hearing and considered the parties' arguments and the Pretrial Services report. For the reasons detailed below, the government's motion for detention (Docket No. 8) is DENIED. Specifically, the Court finds that no detention hearing is authorized under the Bail Reform Act in this case because the government failed to prove that this case involves: (1) a minor victim within the meaning of § 3142(f)(1)(E); (2) a "serious risk" that Abrego will flee, as required by § 3142(f)(2)(A); or, (3) a "serious risk" that Abrego will obstruct justice or otherwise interfere with the integrity of this proceeding, as required by § 3142(f)(2)(B).

Even if, however, the government was entitled to a detention hearing, the Court would still conclude that the government has not met its burden under § 3142(g) because the Court finds that there are conditions of release that can be imposed to reasonably assure the safety of others and the community and to reasonably assure Abrego's appearance as required. Overall, the strength of the factors weighing in favor of release outweighs all other factors in favor of detention, which compels Abrego's release, particularly given the clear default under the law that persons who have not yet been convicted of a crime should be released pending trial.

III. PROCEDURAL AND FACTUAL BACKGROUND

Abrego is charged in an indictment of May 21, 2025² with one count of conspiracy to unlawfully transport illegal aliens³ for financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(v) and (B)(i) and one count of illegal transportation of illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i).⁴ (Docket No. 3.) Abrego was returned to the United States from El Salvador,⁵ and was arrested in Nashville on June 6, 2025. (Docket No. 9.) Contemporaneously, the government filed a motion for detention. (Docket No. 8.) An initial appearance was held on June 6, 2025, at which Abrego was appointed counsel and advised of the charges, penalties, and his rights. (Docket No. 10.) The government did not, in its original motion, articulate the specific grounds for its request for Abrego's detention. At the initial appearance, the Court therefore directed the government to supplement its motion. See June 6, 2025 Order (Docket No. 13). To allow Abrego an opportunity to fully review the indictment with counsel and with the assistance of an interpreter, which he did not have an opportunity to do before the June 6 initial appearance, arraignment and hearing on the government's motion for detention were set for June 13, 2025.⁶ (Id.) A hearing was held on June 13, 2025.

To be clear, the offenses of which Abrego is charged are human smuggling, not human trafficking. Although "smuggling" and "trafficking" were sometimes used interchangeably during the detention hearing, there is a distinct difference between the two under the law. They are not transposable. According to the United States Citizenship and Immigration Services ("USCIS") Policy Manual:

Federal law distinguishes between the crimes of human smuggling and human trafficking. Trafficking is a crime committed against a person regardless of the person's immigration status or the crossing of a transnational border, while smuggling is a crime committed against a country's immigration laws and involves the willful movement of a person across a country's border.

A person may voluntarily consent to be smuggled. In contrast, an act of trafficking must involve both a particular means, such as the use of force, fraud, or coercion, and a particular purpose, such as subjection to involuntary servitude or a commercial sex act.

USCIS POLICY MANUAL, Difference Between Trafficking and Smuggling, Vol. 3, Pt. B, Ch. 2, § B.7, https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-2. The Cornerstone Report,⁷ a quarterly bulletin highlighting key issues related to investigations by ICE Homeland Security Investigations ("HSI"), also explains the difference between human trafficking and human smuggling:

Human trafficking and human smuggling are often confused. The two crimes are very different and it is critical to understand the difference between the two.

Human trafficking involves exploiting men, women, or children for the purposes of forced labor or commercial sexual exploitation.

Human smuggling involves the provision of a service—typically, transportation or fraudulent documents—to an individual who voluntarily seeks to gain illegal entry into a foreign country.

The Cornerstone Report, Human Trafficking vs Human Smuggling, Vol. XIII, No. 1, Summer 2017, p.1. As the report states: "Smuggling is transportation-based. Trafficking is exploitation-based." Id. "These are not interchangeable terms." Id.

At the detention hearing, the government presented testimony from ICE HSI Special Agent Peter Joseph and the following admitted exhibits: body camera footage of the traffic stop by the Tennessee Highway Patrol ("THP") on November 30, 2022; a screenshot taken from the November 30, 2022 traffic stop body camera footage; a passenger roster from the November 30, 2022 traffic stop; a snapchat screenshot between Abrego and cooperator N.V.; an August 2020 temporary order of protection against Abrego; and a May 2021 temporary order of protection against Abrego.

Abrego offered his brother as a third-party custodian, by submission of a sworn declaration, which was admitted as an exhibit. Additionally admitted as defense exhibits were an immigration court memo and order granting Abrego's withholding of removal and a letter from CASA in support of Abrego.

Having reviewed all the evidence, and considered the parties' arguments and the Pretrial Services report, the Court makes the following findings of fact and conclusions of law.

IV. APPLICABLE PROVISIONS OF THE BAIL REFORM ACT

"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception . . . . [T]he provisions for pretrial detention in the Bail Reform Act of 1984 [18 U.S.C. §§ 3141 et seq.] fall within the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Specifically, the Bail Reform Act charts four outcomes mandating that the court "shall issue an order that, pending trial," that the person be: (1) released on their own recognizance; (2) released on conditions; (3) temporarily detained for purposes not at issue here; or, (4) detained until trial, if the court finds, after a hearing, that "no condition or combination of conditions will reasonably assure" the defendant's appearance or the safety of others. 18 U.S.C. §§ 3142(a).

"To balance a defendant's fundamental interest in pretrial liberty with adequate protection of the community and integrity of the judicial process, Congress authorized detention hearings only in limited circumstances." United States v. Figueroa-Alvarez, 681 F.Supp.3d 1131, 1134-35 (D. Idaho 2023). Those limited circumstances include five categories of serious crimes, as described in § 3142(f)(1)(A) through (E), or when the person presents either a serious risk of flight or a serious risk of obstruction or intimidation under § 3142(f)(2)(A) or (B), which are acts that pose the greatest peril to the integrity of the judicial process. It is beyond dispute that the default position of the Bail Reform Act is that a...