United States v. Lopez

• Decision Date: 23 February 2022
• Docket Number: 3:18-cr-059-JAJ
• Citation: 587 F.Supp.3d 835
• Parties: UNITED STATES of America, Plaintiff, v. Elmer Artemio URIZAR LOPEZ, Defendant.
• Court: U.S. District Court — Southern District of Iowa

587 F.Supp.3d 835

UNITED STATES of America, Plaintiff,
v.
Elmer Artemio URIZAR LOPEZ, Defendant.

No. 3:18-cr-059-JAJ

United States District Court, S.D. Iowa, Eastern Division.

Signed February 23, 2022

587 F.Supp.3d 839

Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, Richard D. Westphal, United States Attorney's Office, Des Moines, IA, for Plaintiff.

ORDER

JOHN A. JARVEY, UNITED STATES DISTRICT JUDGE

This matter comes before the Court pursuant to defendant Elmer Urizar Lopez's September 25, 2018 Motion for Reconsideration [Dkt. 37], and January 24, 2022 Second Motion to Dismiss. [Dkt. 40]. The government responded on February 7, 2022 [Dkt. 44], and Urizar Lopez filed a reply on February 10, 2022. [Dkt. 45]. Urizar Lopez asks the Court to reconsider its September 18, 2018 Order. [Dkt. 36]. In that Order, the Court denied Urizar Lopez's June 30, 2018 Motion to Dismiss. [Dkt. 22]. Urizar Lopez argues that the Indictment should be dismissed because the government has violated his rights to a speedy trial, the assistance of counsel, and due process. The Court held a hearing on the motions on February 16, 2022.

For the following reasons, Urizar Lopez's September 25, 2018 Motion for Reconsideration [Dkt. 37] is granted, his January 24, 2022 Second Motion to Dismiss [Dkt. 40] is granted, and the Indictment is DISMISSED with prejudice .

BACKGROUND

Urizar Lopez is a citizen of Guatemala. On January 18, 2014, he was ordered removed from the United States and was advised that he was prohibited from entering the United States for five years. In May 2018, Urizar Lopez was found in the United States. The government reinstated the 2014 removal order and he was once again subject to removal proceedings.

On June 4, 2018, the government filed a criminal complaint against Urizar Lopez in this Court. [Dkt. 1]. The government alleged that Urizar Lopez had illegally reentered the United States, in violation of 8 U.S.C. § 1326(a). Urizar Lopez made his initial appearance the same day. [Dkt. 3]. On June 8, 2018, United States Magistrate Judge Stephen B. Jackson, Jr. held a combined preliminary and detention hearing. [Dkt. 14, 15]. At this hearing, Judge Jackson concluded that the government had established probable cause that Urizar Lopez had committed the offense charged in the complaint. [Id. ]. He reserved ruling on the government's motion for detention. On June 19, 2018, Judge Jackson issued a written order, denying the motion, and

587 F.Supp.3d 840

ordering that Urizar Lopez be released from the custody, pending the appointment of an appropriate custodian. [Dkt. 16]. The day Urizar Lopez was released from the custody of the U.S. Marshal Service, he was taken into the custody of Immigration and Customs Enforcement ("ICE").

On June 20, 2018, the grand jury returned an indictment against Urizar Lopez. [Dkt. 18]. The four-count indictment charged him with 1) Unlawful Re-entry; 2) Fraud and Misuse of Documents; 3) Misuse of Social Security Number; and 4) Use of Immigration Identification Document Not Lawfully Issued. [Id. ]. An arraignment was scheduled for June 26, before Judge Jackson. Urizar Lopez did not appear at the hearing because he was in ICE custody, and ICE had not transported him to court. [Dkt. 20]. The government requested an arrest warrant based on the failure to appear, which was denied. [Id. ]. Instead, Judge Jackson continued the arraignment hearing and ordered both parties to file status reports by July 9, advising the Court of Urizar Lopez's location and explaining how they proposed the case proceed. [Id. ].

The government filed its status report on July 3, 2018 [Dkt. 23] and the defense filed its report on July 9 [Dkt. 25]. As of both these dates, Urizar Lopez was in ICE custody in the Hardin County Jail in Eldora, Iowa. On August 9, 2018, the defense filed a Supplemental Status Report that stated Urizar Lopez was processed for deportation on August 3, 2018 and that the USCIS Inmate Locator no longer reported that he was in ICE custody. [Dkt. 33]. At some point while he was in custody, Urizar Lopez requested, and was granted, an asylum hearing. Asylum, however, was denied.

On June 30, 2018, Urizar Lopez filed a Motion to Dismiss the Indictment or Alternatively, Motion for an Order to Show Cause. [Dkt. 22]. He argued that ICE had violated the Bail Reform Act ("BRA") and his constitutional rights by taking him into custody after Judge Jackson had ordered that he be released. The Court denied the motion on September 18, 2018. [Dkt. 36]. The Court held that the Immigration and Nationality Act ("INA") and the BRA provide "the government with two sequential decisions: one by the criminal courts and one by immigration authorities." and that simultaneous administrative and criminal proceedings were permissible. [Id. at 4.].

Urizar Lopez filed a Motion for Reconsideration of Order Denying Motion to Dismiss on September 25, 2018. [Dkt. 37]. In that Motion, defense counsel reported that they had contacted Urizar Lopez on September 17, 2018. Urizar Lopez confirmed that he had been deported from the United States in early August 2018, and that he was, at that time, living in Guatemala. [Id. at 2]. Urizar Lopez argued that the indictment should be dismissed because the government violated his constitutional rights by deporting him while his criminal case was pending. [Id. ].

No further activity occurred in this case after Urizar Lopez's Motion for Reconsideration on September 25, 2018, until he filed his Second Motion to Dismiss, on January 24, 2022. To the best of the Court's knowledge, Urizar Lopez...