United States v. Escobar-Mariscal

United States of America, Plaintiff, v. Yanco Joel Escobar-Mariscal, Defendant.

No. CR-19-02777-001-TUC-RM (DTF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 27, 2020

ORDER

On February 6, 2020, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation ("R&R") (Doc. 30) recommending that this Court deny Defendant's Motion to Dismiss the Indictment with Prejudice (Doc. 20). Defendant filed an Objection to the R&R (Doc. 34), the Government filed a Response to the Objection (Doc. 37), and Defendant filed a Reply (Doc. 42). For the following reasons, the R&R will be overruled, the Defendant's Objection granted, and the Motion to Dismiss granted insofar as the indictment will be dismissed without prejudice.

I. Background

On November 26, 2019, Defendant was indicted on one count of Illegal Reentry of a Removed Alien in violation of 8 U.S.C. § 1326(a). (Doc. 19.) At Defendant's detention hearing on October 15, 2019, Magistrate Judge Macdonald ordered Defendant released with conditions. (Doc. 6.) The same day, the Government appealed the release order to this Court. (Doc. 9.) On October 30, 2019, this Court affirmed Judge Macdonald's release order. (Docs. 14, 15.) Due to a previously lodged immigration detainer, Defendant was transferred to the custody of Immigration and Customs Enforcement ("ICE"). (Doc. 37 at 2.) Defendant did not appear for his scheduled arraignment on November 15, 2019 before Magistrate Judge D. Thomas Ferraro. (Doc. 18.) At that hearing, defense counsel explained that Defendant had been deported. (Doc. 37 at 2.) The arraignment was vacated, and an arrest warrant issued for Defendant. (Docs. 18, 19.)

On December 2, 2019, Defendant filed the pending Motion to Dismiss. (Doc. 20.) Defendant argues that the indictment should be dismissed with prejudice because the Government violated Defendant's right to an individualized determination of release under the Bail Reform Act ("BRA") by deporting him. (Id.) Defendant further argues that his deportation violated his Sixth Amendment right to assistance of counsel. (Id.) Defendant urges the Court to exercise its supervisory power to dismiss the indictment to remedy the statutory and constitutional violations resulting from Defendant's deportation during his criminal proceedings. (Id.)

The Government opposes dismissal. (Doc. 23.) The Government argues that there is no statutory conflict between the BRA's requirement that criminal defendants be released under certain circumstances pending resolution of their cases, and ICE's simultaneous detention and removal of removable aliens pursuant to the Immigration and Nationality Act ("INA"). (Id.) The Government, citing cases from the Third, Sixth, and D.C. Circuits, argues that the weight of authority dictates a finding that the BRA's release provisions do not conflict with ICE's authority to detain and remove a Defendant under the INA. (Id.); see United States v. Soriano Nunez, 928 F.3d 240, 245 (3d Cir. 2019), (pre-trial release does not preclude pre-removal detention, and the BRA and INA do not conflict); United States v. Vasquez-Benitez, 919 F.3d 546, 552 (D.C. Cir. 2019) ("Detention of a criminal defendant pending trial pursuant to the BRA and detention of a removable alien pursuant to the INA are separate functions that serve separate purposes and are performed by different authorities."); United States v. Veloz-Alonso, 910 F.3d266, 270 (6th Cir. 2018) ("ICE may fulfill its statutory duties under the INA to detain an illegal alien pending trial or sentencing regardless of a BRA release determination."). The Government contends that Defendant, as well as some other district courts, have misinterpreted the INA departure regulations that restrict an alien's departure if "departure would be prejudicial to the interests of the United States." (Id. at 8); see 8 C.F.R. §§ 215.2(a), 215.3(g); United States v. Baltazar-Sebastian, 429 F. Supp. 3d 293 (S.D. Miss. 2019); United States v. Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228, at *7 (S.D. Ala. Sept. 20, 2013); United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1177-78 (D. Or. 2012). The Government contends that these regulations should be interpreted to "refer to aliens who try to depart from the United States voluntarily, not aliens who are subject to final orders of removal." (Doc. 23 at 8.) The Government further maintains that Defendant's removal has not violated his Sixth Amendment right to counsel. (Id. at 14.)

On February 5, 2020, Judge Ferraro heard oral argument on the Motion to Dismiss. (Docs. 29, 34-1.) At that hearing, defense counsel stated that Defendant's whereabouts were unknown and that she had not been able to contact her client. (Doc. 34-1.) Defense counsel further argued that ethical obligations prevented her from disclosing to the Court more detailed information about her contacts with Defendant. (Id. at 8-9); see also Arizona State Bar Ethics Opinion 95-02.

After the hearing, Judge Ferraro issued the pending R&R recommending that the Motion to Dismiss be denied because Defendant had failed to carry his burden to demonstrate that the indictment should be dismissed to "remedy a constitutional or statutory violation" or "deter future illegal conduct." (Doc. 30.)¹ The R&R finds that "defense counsel offered no evidence at the February 5, 2020 hearing that she was unable to communicate with her client" and that "there is no evidence that the defendant has been prevented from returning to the United States to make his court appearances or consult with his counsel." (Id. at 2.)

Defendant's Objection contends that defense counsel need not disclose confidential information in order for the Court to determine that the indictment should be dismissed. (Doc. 34 at 5-6.) Defendant argues that his removal from the United States violates his release order and his Sixth Amendment right to counsel, and that dismissal with prejudice is the appropriate remedy for the constitutional violation and to promote respect for the BRA. (Id. at 6-10.)

The Government's Response argues that (1) there is no statutory conflict between the BRA and the INA (Doc. 37 at 4-9); (2) Ninth Circuit precedent does not warrant dismissal (id. at 9-12); (3) the immigration regulations do not warrant dismissal (id. at 12-14); and (4) Defendant's removal did not violate his Sixth Amendment right to counsel (id. at 17-20).

Defendant's Reply argues, in part, that: (1) Defendant's removal prejudiced the United States (Doc. 42 at 3); (2) the Government's argument that it can coordinate with the Department of Homeland Security to parole Defendant into the country is belied by its inability to coordinate with that agency to prevent Defendant's deportation in the first place (id. at 4); (3) the magistrate judge should have given more weight to the fact that Defendant's failure to appear and communicate with his attorney was directly related to the Government deporting him (id. at 6); and (4) the burden to procure Defendant should not shift to his own attorney (id.).

II. Standard of Review

A district judge must "make a de novo determination of those portions" of a magistrate judge's "report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. "[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000).

. . . .

III. Discussion

As an initial matter, the Court notes that the out-of-circuit cases cited by the Government are not binding on this Court. See, e.g., Soriano Nunez, 928 F.3d at 245; Vasquez-Benitez, 919 F.3d at 552; Veloz-Alonso, 910 F.3d at 270. This Court agrees—and has previously recognized—that the tension seen in this and numerous other cases in this district "between lawful release orders" under the BRA and "actions taken by ICE" under the INA does not result "from statutory language" in the BRA and INA. United States v. Lutz, Case No. CR19-00692-TUC-RM(BGM), 2019 WL 5892827, at *2 (D. Ariz. Nov. 12, 2019). Rather, that tension results "from the failure of two article II agencies to coordinate their respective efforts." Id.

Furthermore, the relevant issue here is not whether Defendant's detention under the INA conflicts with his release under the BRA but, rather, whether the Government may proceed with its prosecution after removing Defendant from the United States. Not one of the cases cited by the Government holds that it may do so, and the Court finds that it cannot. There are obvious problems with the Government's efforts to continue its prosecution of Defendant after his removal. First, Defendant's continued prosecution following his removal interferes with his Sixth Amendment right to counsel. Second, Defendant's removal from the country creates logistical problems for the administration of justice that the Government has not addressed to the Court's satisfaction.

1. Defendant's Deportation Violates his Sixth Amendment Right to Counsel

As this Court has found in other similar cases, Defendant's removal during the pendency of his criminal proceedings violates his Sixth Amendment right to counsel because it interferes with his ability to communicate with and consult with counsel regarding his case. See United States v. Calderon-Lopez, Case No. CR19-03027-RM(DTF), 2020 WL 2616034, at *2-3 (D. Ariz. May 22, 2020); United States v. Munoz-Garcia, Case No. 19-01670-TUC-JGZ(EJM), 2020 WL 1929204, at *3 (D. Ariz. Apr. 21, 2020); Lutz, 2019 WL 5892827 at *5.

At oral argument before Judge Ferraro, defense counsel indicated that she had notsucceeded in contacting Defendant. The exchange between defense counsel and Judge Ferraro went as follows:

THE COURT: All right. And with regard to - this matter was on the

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