United States v. Reyes-Romero

• Decision Date: 06 March 2019
• Docket Number: 2:17-cr-292
• Citation: 364 F.Supp.3d 494
• Parties: UNITED STATES of America, v. Mario Nelson REYES-ROMERO, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

364 F.Supp.3d 494

UNITED STATES of America,

v.Mario Nelson REYES-ROMERO, Defendant.

2:17-cr-292

United States District Court, W.D. Pennsylvania.

Signed March 6, 2019

Adam N. Hallowell, U.S. Attorney's Office, Pittsburgh, PA, for United States of America

OPINION

Mark R. Hornak, Chief United States District JudgeFrom time to time, a court is compelled to render a decision that was completely avoidable by at least one party and, in doing so, must place on the public record conclusions as to the actions of that party that are both disturbing and uncharacteristic of that party's course of conduct in other settings. This is just such a decision, involving the exercise of the federal government's power to investigate, bring, and pursue criminal prosecutions.

The Government, in its capacity as prosecutor, "may prosecute with earnestness and vigor—indeed, [it] should do so. But, while [it] may strike hard blows, [it] is not at liberty to strike foul ones." Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).¹ This Opinion addresses an award of attorney's fees under the Hyde Amendment, which is one avenue of relief available to individuals after just such a prejudicial detour from the fair administration of justice by the two Executive Departments of the federal government involved here.

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Mr. Mario Nelson Reyes-Romero ("Reyes-Romero") seeks an award of attorney's fees and expenses pursuant to the Hyde Amendment, 18 U.S.C. § 3006A (statutory note), Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997), claiming that the Government's² criminal prosecution against him was vexatious, frivolous, and/or in bad faith. Reyes-Romero filed the pending Application for Award of Attorney's Fees and Litigation Costs ("Fee Application") on August 7, 2018. (Fee Application, ECF No. 94.) Both parties submitted briefs (ECF Nos. 95, 105, 106), and the Court held an Oral Argument.³ (ECF No. 111.) Reyes-Romero's Fee Application is granted to the extent that the Court will award attorney's fees and litigation costs to Reyes-Romero, the final amount of which will be determined in further proceedings.

I. Factual Background

On October 24, 2017, Reyes-Romero was indicted in this District on one (1) count of Reentry of Removed Alien, 8 U.S.C. § 1326. (Indictment, ECF No. 1.) The Indictment stated that Reyes-Romero had been previously removed from the United States in 2011⁴ pursuant to law ("2011 Removal") and later knowingly and unlawfully reentered the United States. (Id. )

On November 17, 2017, Reyes-Romero filed a motion to dismiss the Indictment and asserted the affirmative defense set out in § 1326(d),⁵ which allows for a collateral attack on the validity of the underlying removal order (in this case, the Removal Order resulting from the 2011 Removal Proceedings). (Reyes-Romero's Mot. to Dismiss, ECF No. 14.) The parties briefed the issues in Reyes-Romero's motion to dismiss extensively, and the Court conducted a two-day hearing and oral argument.⁶ The parties were also permitted to file post-hearing briefs. (Order, ECF No. 27.)

Then, on February 27, 2018, the Government filed its own motion to dismiss the Indictment with prejudice (Gov't's Mot. to Dismiss, ECF No. 46), but also refused to consent to or to not oppose the bare granting of Reyes-Romero's motion to dismiss. Ultimately, the Court issued an Opinion and accompanying Order, dated July 2, 2018, granting Reyes-Romero's motion to dismiss, holding that the underlying 2011 Removal Order was wholly contrary to law, and ordering the dismissal of the Indictment with prejudice. (Op., ECF No. 92, available at 327 F.Supp.3d 855 (W.D. Pa. 2018) ; Order, ECF No. 93.) In the same Opinion, the Court denied the Government's motion to dismiss, concluding that the Government's motion to dismiss was "principally motivated" by a desire to avoid an adjudication on the validity of Reyes-Romero's 2011 Removal so as to expedite further proceedings against him, and that it was in the interests of justice for the Court to adjudicate and grant Reyes-Romero's motion to dismiss to avoid prosecutorial harassment of Reyes-Romero. (Op. at 51–62.) The Government did not appeal that July 2, 2018, Order, rendering the Court's findings and conclusions in that July 2, 2018, Opinion and Order final.

Reyes-Romero now seeks an award of attorney's fees and litigation costs, arguing that the position of the United States in this criminal case was vexatious, frivolous and/or in bad faith. Given the "scienter" requirements squarely at issue here, the Court must, regrettably, begin by again summarizing the record as it relates to the evidence advanced and positions taken by the United States in this criminal proceeding, largely repeating its now-final findings and conclusions from the July 2, 2018, Opinion, as to the conduct of the Government in this case.⁷

A. The Indictment is Filed and Reyes-Romero Files His Motion to Dismiss

A month after the Government filed its Indictment charging Reyes-Romero with Reentry of Removed Alien, Reyes-Romero filed his motion to dismiss pursuant to § 1326(d). (ECF No. 14.) Reyes-Romero's motion to dismiss attacked the validity of the 2011 Removal Order on the basis that it was premised on unintelligent waivers of his rights that he executed during his 2011 Removal proceedings.⁸ To support this argument that his alleged "waivers" were invalid, Reyes-Romero attached two black-and-white copies of the DHS forms that were completed during his 2011 Removal Proceeding—DHS Form I-826 and DHS Form I-851 (the "Forms")—as part of the appendix to his brief in support of his motion to dismiss the Indictment ("Appendix"). (Op., at 2; see also App. 22–23, 106, ECF No. 16.)⁹

The first Form at issue, the I-826, is titled, "Notice of Rights and Request for Disposition." (Ex. A.) The I-826 informed Reyes-Romero that he had a right to a hearing before an Immigration Judge to determine whether he may remain in the United States, and provided three options: request a hearing, declare fear of returning to the home country, or admit illegal status and surrender rights to a hearing. (Id. ) The black-and-white copy of Reyes-Romero's completed I-826 shows that Reyes-Romero supposedly selected two wholly irreconcilable options: he both requested a hearing and surrendered his rights to a hearing. (Id. ) The I-826 indicates a date and time of service of June 23, 2011, 9:00. (Id. )

The second Form at issue, the I-851, is a two-page document titled, "Notice of Intent to Issue a Final Administrative Removal Order." (Ex. B.) The first page contains information about Reyes-Romero with a charge indicating that Reyes-Romero is deportable based on his conviction of an aggravated felony and stating that DHS was serving such notice "without a hearing before an Immigration Judge" but stating that Reyes-Romero could rebut the charges stated on the Form. At the bottom of the first page of the I-851, there is a signature line for "Signature and Title of Issuing Officer." (Id. ) That line contains a signature by the "Issuing Officer" and bears a date and time notation of June 23, 2011, at 10:00. (Id. )

The first section at the top of the second page of the I-851 is the "Certificate of Service," which displays Reyes-Romero's signature and a date and time notation of June 23, 2011, 9:20. (Ex. B.) Thus, the Form was signed by the Issuing Officer and "issued" forty (40) minutes after receipt was purportedly acknowledged by Reyes-Romero at 9:20 AM that day. (Op. at 9.) The middle section of the second page, where Reyes-Romero would have contested removal or sought withholding of removal, is blank. (Ex. B.) The final section has three boxes checked, corresponding with the following selections: (1) expressing no desire to contest and/or to request withholding of removal, (2) admitting the allegations and charges contained in the Form and acknowledging ineligibility for any form of relief from removal, and (3) waiving the right to apply for judicial review. (Id. ) Below these three selections is Reyes-Romero's signature, with a date and time of June 23, 2011, 9:00 written in that section, twenty (20) minutes before the time noted next to Reyes-Romero's signature in the "Certificate of Service" section. (Id. ) It is "witnessed" by the interpreter and DHS "serving" Officer, Jose Alicea, with the very same date and time notation. (Id. )

At the time that Reyes-Romero had filed his motion to dismiss and attached the Forms, it was crystal clear to anyone who looked at the black-and-white copies of the I-826 and I-851 that the following events were recorded as transpiring in the 2011 Removal proceeding: Reyes-Romero supposedly waived his rights to contest removal or apply for judicial review on the I-851 twenty (20) minutes before he acknowledged receipt of the I-851 and an hour before it was ever "issued." (Op. at 10–11.) He supposedly waived those hearing rights (using check marks on the I-851) at the exact moment that he was served with the I-826, where he had also affirmatively indicated his request for a hearing (using X marks). (Id. ) With respect to the different markings attributable to Reyes-Romero, the markings switched from Form to Form yet key ones (check marks) matched other markings attributed to the Officers on each such Form. (Id. ; Exs. A, B.)

Despite the inherent inconsistency as to Reyes-Romero's desire for a hearing that was plain from the face of the Forms, the Government responded to Reyes-Romero's motion to dismiss by arguing that he "knowingly and intelligently waived his right to contest the 2011 Immigration proceedings in the Form I-851 waiver." (ECF No. 17, at 7.) The Government argued that the I-851 represented a valid and completed waiver and that Reyes-Romero's dual-selection on the I-826 made the I-826 "internally inconsistent at best" but still insufficient to show that his waivers were not knowing and voluntary. (Id. at 8.) As later events would demonstrate, that position of the DOJ was...