United States v. Hernandez-Saldivar
| Docket Number | 4:22-cr-00266-RDP |
| Decision Date | 26 September 2022 |
| Parties | UNITED STATES OF AMERICA, v. JOSUE HERNANDEZ-SALDIVAR, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
The Government moves to revoke the Western District of Louisiana Magistrate Judge's order for release of Defendant Josue Hernandez-Saldivar under the Bail Reform Act, 18 U.S.C § 1345. (Doc. # 15). For the following reasons, the motion is due to be granted.
This case has an unusually complicated procedural history that may best be described as an extended game of custodial “keep away” between ICE and the DOJ.
Defendant Josue Hernandez-Saldivar is a citizen of Honduras who was ordered removed from the United States in absentia in 2015. (Doc. # 1 at 6). On June 24, 2022, he was driving on I-20 in St. Clair County, Alabama when Leeds Police Department (“LPD”) Officer Turnbloom initiated a traffic stop for improper lane usage. (Id. at 3). When Officer Turnbloom explained the violation, Defendant presented a Honduran passport. (Id.). After talking with Defendant, Officer Turnbloom asked to search the vehicle, and Defendant consented to the search. (Id.). In the vehicle, Officer Turnbloom found two firearms: a Smith and Wesson Shield 9mm and a Sig Sauer .45 caliber handgun, along with ammunition. (Id. at 4). Defendant stated he was transporting the guns from Memphis to Nashville for a friend (but was first stopping in Atlanta to visit his girlfriend, and that is why he was in Alabama). (Id. at 3). Officer Turnbloom contacted Homeland Security Investigations (“HSI”) Agent Hinkle, then arrested Defendant and transported him to the LPD. (Id. at 4).
At the LPD, Agent Hinkle conducted records checks, which revealed Defendant was a Honduran citizen who had been previously ordered removed from the United States. (Id.). During an interview, Defendant said he had entered the United States about ten years ago and had been caught by ICE five times previously. (Id. at 5). He also gave consent for Agent Hinkle to examine his cellphone. (Id.). On the phone, Agent Hinkle discovered photos and videos of firearms, including a picture of Defendant holding a handgun. (Id.).
Defendant was later booked into the Trussville, Alabama city jail (the LPD's contract detention center), and ICE issued a detainer.[1] (Id. at 6). Defendant was released on June 27, 2022 after posting bond and was immediately taken into ICE custody in Birmingham. (Id.). He was then transported to Louisiana, and ICE began removal proceedings.[2] (Doc. # 15 at 5).
A federal complaint was filed in the Northern District of Alabama on July 6, 2022, charging Defendant with violating 18 U.S.C. § 922(g)(5), which prohibits a person unlawfully in the United States from possessing a firearm. (Doc. # 1). An arrest warrant was issued, and Defendant was transferred to U.S. Marshals' custody.
On July 22, 2022, Western District of Louisiana Magistrate Judge Carol B. Whitehurst held a detention hearing and released Defendant on a $25,000 unsecured bond.[3] (Doc. # 3). Because Defendant was subject to an immigration detainer, he was released directly into ICE custody. (Id.).
On July 27, 2022, a federal indictment was filed in the Northern District of Alabama for the same charges under § 922(g)(5), another arrest warrant was issued, and Defendant was transferred back to U.S. Marshal custody. (Doc. # 4). Defendant appeared before Magistrate Judge Gray M. Borden on August 3, 2022, and Judge Borden ordered detention under 18 U.S.C. § 3142(d), which allows a defendant to be detained for up to ten days when a judicial officer determines the person is not lawfully present in the United States and “such person may flee.” (Doc. # 10). The purpose of this section is to allow immigration officials to take the defendant into custody for removal proceedings. See § 3142(d). On August 4, 2022, ICE again took custody of Defendant. (Doc. # 14).
On August 8, 2022, the Government filed an emergency motion to stay the Western District of Louisiana Magistrate Judge's order of release. (Doc. # 15). Judge Corey L. Maze of this district granted a temporary stay on August 16, pending a full review of the motions and record.[4] (Doc. # 22). Once again, Defendant was transferred back into U.S. Marshals' custody. Now, at the end of this winding road, the matter is before this court for consideration.
At the detention hearing, defense counsel offered evidence regarding Defendant's family and community ties. He has been living in the Nashville, Tennessee area since he was around 12 years old. His mother, brother, and girlfriend also live in Nashville. At the time of the hearing, his girlfriend was pregnant with his child and had an August due date. Defendant also has a daughter with a different mother, and has custody of his daughter every other weekend. For employment, Defendant operates a construction company in the area.
In addition to his Nashville connections, Defendant also has ties to Honduras. He was born in Honduras and lived there for about the first 12 years of his life. His grandmother still lives in Honduras, and he keeps in touch with her and sends her money.
Defendant has failed to appear for court proceedings in the past. On August 20, 2015, at age 17, he was ordered removed from the United States in absentia after failing to appear for a removal hearing in Immigration Court in Memphis, Tennessee. On May 12, 2020, at age 21, he was charged with failure to appear in Millersville, Tennessee after being charged with driving with a suspended license. However, he ultimately appeared in court in that matter. He pled guilty to the traffic violation, and the failure to appear charge was dismissed.
A district court must review de novo a magistrate judge's decision regarding pretrial release under the Bail Reform Act. See United States v. Hurtado, 779 F.2d 1467, 1480 (11th Cir. 1985). De novo review “requires the court to exercise independent consideration of all facts properly before it and to include written findings of fact and a written statement of the reasons for the detention” but does not require the court to conduct a de novo hearing unless there are unresolved factual questions. United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987); see also United States v. King, 849 F.2d 485, 489-91 (11th Cir. 1988).
In this case, the court has thoroughly reviewed the record and finds a de novo hearing is unnecessary to rule on the current motion.
The Bail Reform Act governs pretrial release in federal criminal cases. 18 U.S.C. § 3142. The Act requires a court to detain a criminal defendant prior to trial when “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). “In common parlance, the relevant inquiry is whether the defendant is a ‘flight risk' or a ‘danger to the community.'”[6] United States v. Vasquez-Benitez, 919 F.3d 546, 551 (D.C. Cir. 2019).
“A determination that an individual is a flight risk must be supported by a preponderance of the evidence.” Id.; see also King, 849 F.2d at 489; United States v. Medina, 775 F.2d 1398, 1402 (11th Cir. 1985). In making this decision, the court must consider four factors: (1) the nature and circumstances of the offense charged, including whether the offense involves a firearm; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g).
The Government argues that the court should consider the ICE detainer as a relevant factor under the Bail Reform Act analysis, as Defendant's likely removal from the country creates a risk of nonappearance in future court proceedings. (Doc. # 15 at 6). Courts are divided on this question.[7] However, it is unnecessary to decide the issue in this case because, even putting aside the ICE detainer issue, the Act does not entitle Defendant to pretrial release.
This is not to say that a defendant's immigration status can be disregarded entirely. It is undoubtedly relevant to the extent it incentivizes a defendant to flee if release is granted. See United States v. Garcia-Chagala, No. 17-cr-133-FtM-38MRM, 2017 WL 6535198, at *2 (M.D. Fla. Dec. 21, 2017).
On the other hand, some courts reason that an ICE detainer actually mitigates any flight risk because, short of a jailbreak, the defendant realistically cannot flee while in ICE custody. See United States v. Lozano, No. 9-CR-158, 2009 WL 3834081, at *3 (M.D. Ala. Nov. 16, 2009). But this analysis is faulty because it assumes that ICE can and will continue to detain the defendant, which is not always the case. During pending removal proceedings, ICE detention is permissive, not mandatory. See 8 U.S.C. § 1226(a). And, while ICE must detain an alien who is subject to a final order of removal, ICE's authority to detain the alien beyond the 90-day removal period is limited. See 8 U.S.C § 1231(a)(1), (2), (6); Zadvydas v....
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