United States v. Villatoro-Ventura

• Decision Date: 12 September 2018
• Docket Number: No. CR18-4060-LTS,CR18-4060-LTS
• Citation: 330 F.Supp.3d 1118
• Parties: UNITED STATES of America, Plaintiff, v. Walter VILLATORO-VENTURA, Defendant.
• Court: U.S. District Court — Northern District of Iowa

330 F.Supp.3d 1118

UNITED STATES of America, Plaintiff,

v.Walter VILLATORO-VENTURA, Defendant.

No. CR18-4060-LTS

United States District Court, N.D. Iowa, Western Division.

Signed September 12, 2018

Kevin C. Fletcher, US Attorney's Office, Sioux City, IA, for Plaintiff.

Bradley Ryan Hansen, Federal Public Defender's Office, Sioux City, IA, for Defendant.

ORDER

Leonard T. Strand, Chief Judge

I.INTRODUCTION

This matter is before me on the Government's motion (Doc. No. 27) to revoke a release order (Doc. Nos. 14, 17) by the Honorable Kelly K.E. Mahoney, United States Magistrate Judge.DefendantWalter Villatoro-Ventura has filed a resistance (Doc. No. 38).Also before me is Villatoro-Ventura's first motion(Doc. No. 29) to dismiss the indictment (Doc. No. 1) with prejudice.¹The Government has resisted (Doc. No. 43) and Villatoro-Ventura has replied (Doc. No. 50).I held a hearing on August 27, 2018, during which additional evidence was presented.Both motions are ready for decision.

II.BACKGROUND FACTS AND PROCEEDINGS

On June 5, 2018, Villatoro-Ventura was arrested by Immigration and Customs Enforcement (ICE).ICE held Villatoro-Ventura in custody until a grand jury returned an indictment on June 19, 2018, charging him with one count of being found after illegal reentry in violation of 8 U.S.C. § 1326(a).While Villatoro-Ventura was in ICE custody, he was not brought before an immigration judge (IJ) or hearing officer or offered a bond hearing.²In fact, there is no evidence that any immigration proceedings happened during the time Villatoro-Ventura was held in ICE custody prior to his transfer to the custody of the United States Marshal.

On June 26, 2018, Villatoro-Ventura was transferred to Marshal custody for his initial appearance and arraignment in this case.The process by which Villatoro-Ventura found himself transferred from ICE to Marshal custody for federal prosecution is regulated by a mixture of ICE and United States Attorney's Office(USAO) policies.³Up to the point of transfer, other than perhaps the 21 days of inaction by ICE, there is little controversial about the proceedings against Villatoro-Ventura.

Villatoro-Ventura's case became complicated at his initial appearance and arraignment on June 26, 2018.At that time, he exercised his right under 18 U.S.C. § 3142(the Bail Reform Act or BRA), to request a detention hearing.Doc. No. 6.Judge Mahoney held a detention hearing on June 29, 2018, during which she considered the Pretrial Services Report (PSR) prepared by United States Probation, the testimony of ICE Deportation Officer Christopher Green and Villatoro-Ventura's proffer of information.Doc. No. 13.Judge Mahoney ordered Villatoro-Ventura released.The Government, through Officer Green and Assistant United States Attorney Kevin Fletcher, represented that release under the BRA would result in ICE taking Villatoro-Ventura into custody⁴ and deporting him before his trial date.However, Judge Mahoney held that such alleged eventuality should not affect the court's determination under the BRA:

In this case, ICE very clearly decided that criminal prosecution should take precedence over removal proceedings; Villatoro-Ventura was in ICE custody for 21 days (from June 5 to June 26) without being removed before ICE turned him over to appear in the criminal case.The Government acknowledged at the detention hearing that if Villatoro-Ventura is removed from the United States by ICE prior to trial in this case, the criminal indictment would have to be dismissed.Therefore, it appears the Government is fully aware of the risk to the criminal case should ICE detain and deport Villatoro-Ventura pending trial.The conflict between either Villatoro-Ventura being released on conditions and standing trial or being taken into immigration custody and removed prior to trial rests with the [USAO] and ICE, both agencies within the Executive Branch.It is not the court's place to resolve internal decisions between the Department of Justice and the Department of Homeland Security about whether a criminal prosecution or administrative deportation should take precedence in this case.

Doc. No. 17at 15.Put another way, Judge Mahoney held that the various agencies of the Executive Branch could not use their alleged failure to cooperate on Villatoro-Ventura's case to deprive him of his rights.Judge Mahoney also stated that the risk of Villatoro-Ventura's deportation was on the Government: "It is now up to the Government (both the [USAO] and ICE) to determine whether it is more important to prosecute Villatoro-Ventura for illegal reentry (after which they can resume removal proceedings), or expeditiously remove him from the country and risk dismissal of the indictment."Id. at 15-16.

Judge Mahoney stayed her release order for seven days to allow the Government to appeal.However, the Government requested an extension of time to appeal (Doc. No. 20) and Villatoro-Ventura was ultimately released from Marshal custody.Villatoro-Ventura was then taken back into ICE custody and the court was advised that his deportation was scheduled for a date certain some two weeks after he was returned to ICE custody.In addition, Villatoro-Ventura filed his first motion to dismiss the indictment, arguing that ICE and the USAO could not pursue the dual track of deportation and prosecution without violating his statutory and constitutional rights.In order to ensure that Villatoro-Ventura was not deported pending resolution of the Government's appeal, and of Villatoro-Ventura's motion to dismiss, I granted a writ of habeas corpus ad prosequendum to bring Villatoro-Ventura back into Marshal custody.Doc. Nos. 30 to 32.

III.REVIEW OF RELEASE ORDERS

A United States Magistrate Judge may issue orders "pursuant to Section 3142 of Title 18 concerning release or detention of persons pending trial ...."28 U.S.C. § 636(a)(2).If the magistrate judge orders pretrial release, the Government may file a motion to revoke that order pursuant to 18 U.S.C. § 3145(a)(1).A district judge reviewing a magistrate judge's pretrial order of release or detention must conduct a de novo review of that order.SeeUnited States v. Maull , 773 F.2d 1479, 1481(8th Cir.1985)(en banc).

IV.APPLICABLE LAW

A.The Bail Reform Act

The Bail Reform Act of 1984 guides the federal court's determination of a defendant's pretrial release and bail rights.The BRA was enacted in "response to numerous perceived deficiencies in the federal bail process."United States v. Salerno , 481 U.S. 739, 742, 107 S.Ct. 2095, 95 L.Ed.2d 697(1987)."By providing for sweeping changes in both the way federal courts consider bail applications and the circumstances under which bail is granted, Congress hoped ‘to give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released."Id. , (citingS. Rep. No. 98-225, at 3, U.S. CodeCong. & Admin. News 1984, p. 3185).In assessing whether a defendant should be released, 18 U.S.C. § 3142(a) establishes four options: (1) release on personal recognizance or upon execution of an unsecured appearance bond under § 3142(b);(2) release on one or more conditions outlined in § 3142(c);(3) temporary detention to permit revocation of conditional release, deportation, or exclusion under § 3142(d); or (4) detention pursuant to § 3142(e).The court may order detention of an arrestee pending trial only if the Government demonstrates after an adversarial hearing that no release 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).

The BRA applies to all persons charged with a federal crime, regardless of immigration status.The only provision of the BRA that differentiates between the treatment of aliens and citizens – § 3142(d) – permits only a "temporary detention to permit ... deportation, or exclusion" if the judicial officer determines that the defendant"is not a citizen of the United States or lawfully admitted for permanent residence" and "may flee or pose a danger to any other person or the community."Id. at § 3142(d)(1)(B), (d)(2).In such a case, the BRA states: "If the official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings."Id. at § 3142(d).In this case, ICE brought Villatoro-Ventura to the attention of the USAO, not the other way around.Thus, the temporary detention provisions of § 3142(d) do not apply.Instead, Villatoro-Ventura's pretrial release must be resolved pursuant to § 3142(e).

"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."Salerno , 481 U.S. at 756, 107 S.Ct. 2095;United States v. Orta , 760 F.2d 887, 891-92(8th Cir.1985)(en banc)("Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial.");see alsoU.S. Const. Amend. V & VIII.A request to detain a defendant pending trial under § 3142(e) triggers a two-step inquiry.United States v. Delgado , 985 F.Supp.2d 895, 897(N.D. Iowa2013).The court must first consider whether the Government has shown, by a preponderance of the evidence, that it is authorized to seek detention under § 3142(f)(1) or (2).Orta , 760 F.2d at 891 n.20("The statute does not expressly state the appropriate evidentiary standard necessary to support a finding of propensity for flight, indicating the preponderance of the evidence standard usually applied in pretrial proceedings is appropriate.").Section 3142(f)(1) provides that the Government may move for detention

[I]n a case that involves—

(A) a crime of violence, a violation of section 1591, or an offense listed in section 1591, or

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