United States v. Sedeno-Badia

• Decision Date: 27 January 2022
• Docket Number: CR 21-02520-TUC-RM (EJM)
• Court: U.S. District Court — District of Arizona
• Parties: United States of America, Plaintiff, v. Evelio Sedeno-Badia, Defendant.

United States of America, Plaintiff, v. Evelio Sedeno-Badia, Defendant.

No. CR 21-02520-TUC-RM (EJM)

United States District Court, D. Arizona

January 27, 2022

REPORT AND RECOMMENDATION

Eric J. Ma&ovich, United States Magistrate Judge.

Pending before the Court is defendant Evelio Sedeno-Badia's Motion to Dismiss the Indictment based on his continued detention by immigration authorities after being released from custody under the Bail Reform Act (“BRA”). [Doc. 28.] For the reasons that follow, it is recommended that the District Court deny the defendant's motion.

I. Facts

On July 1, 2021, the defendant was arrested and subsequently charged in a criminal complaint with Possession with the Intent to Distribute Fentanyl. At his initial appearance on July 2 2021, the defendant was ordered detained pending his formal detention hearing, which ultimately occurred on July 13 2021. At that hearing, defense counsel consented to the defendant's detention based on the facts set forth in the Pretrial Services Report.

On August 19, 2021, defense counsel asked the Court to reconsider the detention order. On August 23, 2021, the Court ordered Pretrial Services to examine the possibility of halfway house placement. Pretrial Services thereafter recommended that the defendant be released to Dismas Charities. On September 29, 2021, the Court followed that recommendation and ordered the defendant released to Dismas Charities.

After being released under the BRA in the criminal case, the defendant was taken into custody by Immigration Customs and Enforcement (“ICE”) based on his legal permanent resident status in conjunction with the charge that he brought drugs into the United States. The defendant has remained in immigration custody during the pendency of both the criminal and immigration cases.

On November 9, 2021, the defendant filed a Motion to Dismiss the Indictment. The defendant first argues that his detention by immigration authorities violates his right to counsel because he has had difficulty communicating with counsel while he has been in immigration custody. The defendant also argues that his detention during the pendency of the immigration proceedings violates the BRA. Alternatively, the defendant argues that the immigration proceedings should be stayed pending the resolution of the criminal case because of the inherent unfairness in concurrent criminal and immigration proceedings.

In its Response, the government argues that the defendant's right to counsel has not been violated because he has not demonstrated that he is unable to meet with counsel at the immigration detention facility. The government also points out that numerous Circuit Courts have held that release of a defendant under the BRA does not preclude immigration authorities from detaining the defendant pending a removal proceeding. Finally, the government argues that only the immigration court has the authority to stay the removal proceedings.

II. Discussion

A district court may exercise its supervisory powers and dismiss an indictment for three reasons: (1) to remedy a constitutional or statutory violation; (2) to protect judicial integrity by ensuring that a conviction rests on appropriate considerations; and (3) to deter future illegal conduct. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991); see also United States v. Hasting, 461 U.S. 499, 505 (1983) (federal courts' “supervisory powers are threefold”). Dismissal of an indictment “is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available.” United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991).

Unlike other cases addressed by the District and Magistrate Judges of the District of Arizona, ^[1] this case does not directly involve an infringement on the defendant's constitutional right to a speedy trial or right to counsel. Indeed, the defendant does not claim that his right to a speedy trial has been or will be violated.

In terms of the alleged violation of his right to counsel, defense counsel argues that there are several barriers to effective communication between federal public defenders and their clients in immigration custody. Counsel first argues that time for personal visits is increased because immigration detention centers are at different locations in Florence and Eloy, away from the facility (CoreCivic) where pretrial detainees are held, and defendants in immigration custody have been moved between immigration detention centers without providing notice to defense counsel. Counsel argues that these facts are significant because of current federal public defender caseloads. Defense counsel also argues that he has not been able to confirm that phone calls with his client are confidential and counsel is unaware if the immigration detention center allows counsel to schedule confidential calls.

Although the Court is not unsympathetic to the challenges faced by defense counsel, the Court finds that counsel's time constraints amount to an inconvenience and not a violation of the right to counsel. Additionally, without confirmation of the ability of counsel to have a private conversation with his client, these arguments do not yet support an argument that the right to counsel has been violated.

The defendant also argues that his detention by immigration authorities violates his right to be released under the Bail Reform Act of 1984 (“BRA”), 18 U.S.C. § 3141 et seq. As discussed below, many Circuit Courts have rejected this precise argument.

The BRA governs the pretrial detention of those charged with federal criminal offenses. The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (“INA”) governs the detention of individuals who enter the United States without lawful permission to do so. The government must comply with the BRA when prosecuting someone for a federal offense. ICE must comply with the INA when seeking to remove a person from the United States. This case addresses the problem that arises when these Executive Branch agencies seek to prosecute and remove an individual simultaneously. The issue here is whether the defendant (who was released under the BRA) can be held in ICE custody while his criminal prosecution by the government is pending.

The conflict and interplay between the BRA and the INA have been directly addressed by seven appellate circuits. See United States v. Baltazar-Sebastian, 990 F.3d. 939 (5th Cir. 2021); United States v. Barrera-Landa, 964 F.3d 912 (10th Cir. 2020); United States v. Pacheco-Poo, 952 F.3d 950 (8th Cir. 2020); United States v. Lett, 944 F.3d 467 (2nd Cir. 2019); United States v. Soriano Nunez, 928 F.3d 240 (3rd Cir. 2019); United States v. Vasquez-Benitez, 919 F.3d 546 (D.C. Cir. 2019); United States v. Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018). These cases all hold that the statutes do not conflict such that pretrial release under the BRA precludes pre-removal detention under the INA.

The D.C. Circuit in Vasquez-Benitez explained:

The Supreme Court has affirmed that civil detention is a constitutionally permissible part of the Congress's broad power over immigration and the Executive's authority to execute that power. See Demore v. Kim, 538 U.S. 510 523, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). So long as ICE detains the alien for the permissible purpose of effectuating his removal and not to “skirt [the] Court's decision [in] setting the terms of [his] release under the BRA, ” . . .ICE's detention does not offend separation-of-powers principles simply because a federal court, acting pursuant to the BRA, has ordered that same alien released pending his criminal trial. Thus, we see no constitutional conflict of the kind articulated by the district court.

Neither do we see a statutory conflict. 18 U.S.C. § 3142(d) applies only if a “judicial officer determines that. . . [the defendant] may flee or pose a danger to any other person or the community.” 18 U.S.C. § 3142(d)(2). As already discussed, the district court decided that Vasquez-Benitez is not a flight risk or a danger to the community and therefore § 3142(d)(2) does not apply. In short, the supposed conflict between the BRA and the INA simply does not exist in this case.

Nor do the BRA and the INA conflict more generally. Individuals are detained under the BRA under authority separate from that used to detain individuals under the INA. A criminal defendant is detained under the BRA to ensure his presence at his criminal trial and the safety of the community. See 18 U.S.C. § 3142(e)(1). An illegal alien is detained under the INA to facilitate his removal from the country. See 8 U.S.C. § 1231(a)(2). ICE's authority to facilitate an illegal alien's removal from the country does not disappear merely because the U.S. Marshal cannot detain him under the BRA pending his criminal trial.

A further word is warranted. The district court relied on the principle “ ‘that a precisely drawn, detailed statute pre-empts more general remedies,' even where both ‘literally appl[y].' ” . . . (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 834, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). There is, however, another principle that should have guided its resolution of the antecedent question whether two statutes “literally apply”-that is, “courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). The Congress has never indicated that the BRA is intended to displace the INA. See 18 U.S.C. §

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