United States v. Resendiz-Guevara

• Decision Date: 12 November 2015
• Docket Number: CASE NO: 2:15-cr-66-FtM-29CM
• Parties: United States of America v. Jesus Resendiz-Guevara
• Court: U.S. District Court — Middle District of Florida

145 F.Supp.3d 1128

United States of America

v.Jesus Resendiz-Guevara

CASE NO: 2:15-cr-66-FtM-29CM

United States District Court, M.D. Florida.

Signed November 12, 2015

Michael Bagge-Hernandez, U.S. Attorney's Office, Ft Myers, FL, for United States of America.

OPINION AND ORDER

JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

On October 21, 2015, United States Magistrate Judge Carol Mirando submitted a Report and Recommendation (Doc. # 26) recommending that Defendant's Motion to Dismiss (Doc. # 22) be granted and the Indictment (Doc. # 1) dismissed without prejudice. No objections were filed, and the time to file objections has expired.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1)

; United States v. Powell , 628 F.3d 1254, 1256 (11th Cir.2010). The district judge reviews legal conclusions de novo , even in the absence of an objection. See Cooper–Houston v. Southern Ry. Co. , 37 F.3d 603, 604 (11th Cir.1994). A district court may not reject the credibility determinations of a magistrate judge without personally rehearing disputed testimony from the witness. Powell , 628 F.3d at 1256–58.

After reviewing the Report and Recommendation, the Court fully agrees with the findings of fact and conclusions of law made by the magistrate judge. Accordingly, the Court will adopt the Report and Recommendation and dismiss the Indictment.

Accordingly, it is now

ORDERED:

1. The Magistrate Judge's Report and Recommendation (Doc. # 26) is adopted , and it is specifically incorporated into this Opinion and Order.

2. Defendant's Motion to Dismiss (Doc. # 22) is granted.

3. The Indictment (Doc. # 1) is dismissed without prejudice and the Clerk is directed to terminate all deadlines and close this case.

DONE and ORDERED at Fort Myers, Florida, this 12th day of November, 2015.

REPORT AND RECOMMENDATION¹

CAROL MIRANDO

, United States Magistrate Judge

This matter comes before the Court upon referral from the Honorable John E. Steele, United States District Judge, for a Report and Recommendation as to the appropriate disposition of this case (Doc. 21). Judge Steele ordered the parties to submit supplemental briefing within fourteen (14) days of his order referring this matter to the undersigned. On September 17, 2015, Defendant Jesus Resendiz–Guevara, through counsel, filed a Memorandum of Law in Support of Dismissal and Motion to Dismiss (Doc. 22), and on September 18, 2015, the Government filed its Memorandum of Law Regarding Dismissal of Indictment (Doc. 23). The motion to dismiss therefore is ripe for review, and for the reasons that follow the Court recommends that the indictment be dismissed without prejudice.

I. Background and Procedural History

On May 13, 2015, the grand jury returned a single count indictment charging Defendant, Jesus Resendiz–Guevara, with illegal reentry in violation of 8 U.S.C. § 1326(a)

. The Honorable Douglas N. Frazier, United States Magistrate Judge, held a detention hearing on June 25, 2015, at which the Government argued Defendant was a risk of flight and therefore should be detained. See Doc. 10 (minute entry). Defendant argued for release, stating there were conditions that could be fashioned to permit Defendant's pretrial release. Id. Judge Frazier noted that an ICE detainer had been filed in this case, but still determined that conditions could be fashioned² and released Defendant on a $50,000.00 bond, secured by an agreement to forfeit two mobile homes. Docs. 10, 11. Judge Frazier stayed Defendant's release for ten (10) days to allow the Government the opportunity to appeal to the district court the decision to release Defendant on bond. No appeal was taken.

On July 13, 2015, the Honorable Sheri Polster Chappell held a status conference in this case, at which the Court was informed that Defendant had been deported. See Doc. 15 (minute entry). This case subsequently was set for the trial term beginning August 3, 2015. Doc. 16. On July 22, 2015, Defendant, through counsel, filed an Unopposed Motion to Exonerate Bond requesting the bond be exonerated because Defendant had been deported, and therefore it was impossible for him lawfully to appear in court. Doc. 17. The unopposed motion states that on the same day the Magistrate Judge entered the release order (after the Government failed to appeal Defendant's release within the time permitted), Defendant was taken into custody by ICE on the outstanding detainer. Id. at 2. At no point was Defendant released from custody. Id. Defendant's family retained a second attorney to assist with Defendant's immigration matters, but Defendant was deported before the immigration attorney could pursue the matter. Id. The Honorable Mac R. McCoy, United States Magistrate Judge, entered an Order granting Defendant's motion to exonerate the bond and releasing the collateral on July 24, 2014. Doc. 18.

On August 19, 2015, after nearly one month had elapsed and no action had been taken in this case, Judge Steele entered an Order requiring the Government to show cause why the indictment should not be dismissed without prejudice. Doc. 19. The Government timely filed a response, in which it noted that it argued for detention at the hearing in part because Defendant still was subject to deportation by the Department of Homeland Security (“DHS”) even if the Court granted bond, and asserting that dismissal of the indictment is not warranted where there was no flagrant prosecutorial misconduct and because DHS acted lawfully in deporting Defendant once he was released from the Court's jurisdiction and the physical custody of the United States Marshals Service. Doc. 20. On September 3, 2015, this matter was referred to the undersigned for a Report and Recommendation, and the parties were directed to file any additional legal memoranda. Defendant filed a Memorandum of Law in Support of Dismissal and Motion to Dismiss. Doc 22. The Government filed its Memorandum of Law Regarding Dismissal of Indictment. Doc. 23.

II. Analysis

Defendant contends that the indictment should be dismissed because the Government essentially abandoned the prosecution by deporting Defendant, or allowing him to be deported. Doc. 22. Defendant further asserts that the deportation occurred in violation of applicable law, the Court's order setting conditions of release, Defendant's rights under the Bail Reform Act, his Fifth Amendment right to due process, Sixth Amendment right to counsel and speedy trial rights. Id. Finally, Defendant contends there are no lesser remedies available, and therefore dismissal is warranted. Id.

The Government, by contrast, contends that the Court cannot, or should not, exercise its supervisory authority to sua sponte dismiss the indictment where there was no prosecutorial misconduct, DHS followed immigration regulations in deporting Defendant and where the Court relinquished its primary jurisdiction over Defendant by releasing him with conditions at the request of his counsel. Doc. 23. Here, the Court agrees with Defendant that the Government has abandoned its prosecution, that Defendant's constitutional rights have been violated, and that because Defendant's constitutional rights were violated, this Court may use its supervisory powers to dismiss the indictment without prejudice.

Other courts³ have addressed similar situations and engaged in lengthy discussions attempting to resolve an apparent conflict between the provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.,

and the Bail Reform Act (“BRA”), 18 U.S.C. § 3141 et seq., or at least the interplay between those statutes. See, e.g.,

United States v. Trujillo–Alvarez, 900 F.Supp.2d 1167 (D.Or.2012) ; United States v. Blas, 2013 WL 5317228 (S.D.Ala. Sept. 20, 2013). The most common issue arising out of this conflict in the context of criminal cases has been pretrial detention in cases with an existing ICE⁴ detainer. At the outset, the Court notes that many of the cases cited by the Government in opposition to dismissal involve situations in which the dismissal was with prejudice and therefore are at least partially inapposite here, where the Court contemplates dismissal without prejudice.⁵ Nevertheless, a brief discussion of the relevant provisions of the INA and BRA is required.

The BRA provides that a defendant should be released unless a judge finds that no condition or combination of conditions reasonably will assure the defendant's appearance at trial, or that the defendant presents a danger to the community. 18 U.S.C. §§ 3142(a)

, (e), (f). The BRA establishes a set of factors that the Court may consider when determining whether there are conditions of release that will reasonably assure the defendant's appearance at trial. 18 U.S.C. § 3142(g). While a person's legal status in the United States is not a factor, the BRA does not exclude deportable aliens from consideration for release or detention in criminal proceedings. See 18 U.S.C. §§ 3142(a)(3) and (d). If a judicial officer determines that a person is not a citizen of the United States or lawfully admitted for permanent residence in the United States and that person may “flee or pose a danger to any other person or the community,” the judicial officer may temporarily detain that person for a period of no more than 10 days so that the attorney for the government may notify the “appropriate official of the Immigration and Naturalization Service.” 18 U.S.C. § 3142(d).

“As a number of district courts have persuasively explained, the risk of nonappearance referenced in 18 U.S.C. § 3142

must involve an element of volition.” United States v. Santos–Flòres, 794 F.3d 1088, 1091 (9th Cir.2015). See also

United States v. Barrera–Omana, 638 F.Supp.2d 1108, 1111–12 (D.Minn.2009) (“The Court must conclude that the risk of flight with which Congress was concerned was not a flight flown or paid for by a federal...