United States v. Valdez-Hurtado

638 F.Supp.3d 879

UNITED STATES of America, Plaintiff, v. Andres Felipe VALDEZ-HURTADO, Defendant.

Case No. 22 CR 466

United States District Court, N.D. Illinois, Eastern Division

Signed November 1, 2022

AUSA, Kristin M. Pinkston, Assistant U.S. Attorneys, United States Attorney's Office, Chicago, IL, Pretrial Services, for Plaintiff.

Pablo F. deCastro, Law Offices of Pablo deCastro, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

GABRIEL A. FUENTES, United States Magistrate Judge

On Monday, September 26, 2022, the Court ordered Defendant Andres Felipe Valdez-Hurtado ("Defendant") released from the custody of the U.S. Marshals Service ("USMS") forthwith after the Court was advised that USMS was still holding Defendant in custody despite the Court having ordered him released on bond on September 23. 9/26/22 Order (D.E. 6); September 23 Order Setting Conditions of Release ("Release Order"; D.E. 7). The government represented at a September 26 telephonic status hearing on release that Defendant had remained in USMS custody at least partly because the U.S. Department of Homeland Security ("DHS"), Bureau of Immigration and Customs Enforcement ("ICE"), had lodged a detainer requesting USMS to continue to hold him. 9/26/22 Tr. (D.E. 16) at 3. In this Memorandum Opinion and Order, the Court sets forth the legal analysis behind its September 26 order that Defendant be released from USMS custody forthwith, notwithstanding the ICE detainer request.

BACKGROUND

This matter came before the magistrate judge on criminal duty for initial appearance without unnecessary delay after Defendant's September 20, 2022, arrest under a complaint charging him with smuggling goods, and specifically firearm parts, from the United States to Colombia in violation of 18 U.S.C. § 554. Complaint (D.E. 1); 9/21/22 Order (D.E. 9); LCR 5.1. The magistrate judge had jurisdiction over the proceedings held per the Bail Reform Act, 18 U.S.C. § 3142 et seq., concerning Defendant's pretrial detention or release. 28 U.S.C. § 636(a)(2).

The relevant timeline of events leading up to the Court's order for forthwith release is as follows: After Defendant's arrest on September 20, ICE sent its detainer request to USMS by email at 3:56 p.m. on September 21. Government's Response to the Court's September 26 Order ("Gov't Resp."; D.E. 14) at 2. The ICE detainer request, on DHS Form I-247A, was dated September 21, 2022, was signed by an immigration officer, and stated that DHS had found probable cause to believe that Defendant is a removable alien.¹ The Court held an initial appearance on September 21. 9/21/22 Order. At the initial appearance, the government orally moved for detention, and the Court found that a detention hearing should be held under the Bail Reform Act ("BRA") and specifically 18 U.S.C. § 3142(f)(2)(A). Id. The Court held the detention hearing under Section 3142(e) on Friday, September 23, and denied the government's detention motion, finding that the government had not met its respective burdens to show that no release condition or set of conditions could reasonably assure Defendant's appearance in court as required and the safety of the community or any other person. 9/23/22 Order (D.E. 3). The Court admonished Defendant and his wife, as his third-party custodian, as to the release conditions, which included home detention with location monitoring as well as the third-party custodianship. Id.; Release Order. The Court ordered that Defendant be "released after processing." 9/23/22 Order.

The detention hearing concluded at about 2:40 p.m. on September 23. Gov't Resp. at 2. At no time during the detention hearing did the government communicate to the Court that an ICE detainer existed as to Defendant, had been transmitted to the USMS, or might have any impact on Defendant's release after processing. The Court learned of the ICE detainer request for the first time shortly after the detention hearing, when a USMS deputy courteously informed the Court and defense counsel, off the record, of the detainer request's existence. Unbeknownst to the Court, at 2:44 p.m. that day (minutes after the detention hearing), a USMS official emailed ICE, stating that Defendant was "getting bond" and asking if ICE had a "pickup time" for Defendant. Gov't Resp. at 2-3. Sometime that same afternoon, the prosecutor in this matter called ICE, and specifically the ICE attorney "who serves as a point of contact for detainer matters," to inform the agency of "the Court's decision on release." Id. at 3. The prosecutor "requested [of ICE] that the detainer be lifted, or, if that was not possible, for the defendant to remain in the country to ensure prosecution on the instant case." Id. At 3:18 p.m. on September 23, court staff transmitted the Release Order to the USMS by email. Id.; 9/26/22 Tr. at 3. Although the Court by then was aware of the ICE detainer request, thanks to the informal disclosure made by USMS, the Court still was unaware of the government's position that the ICE detainer request would operate to block Defendant's release until the detainer could be lifted, or that Defendant would not be released until the detainer was lifted. Defendant spent the night of September 23 and the weekend of September 24 and 25 at the Metropolitan Correctional Center in the custody of the USMS. Gov't Resp. at 4.

At 8 a.m. on Monday, September 26, the Court contacted the USMS lockup at the Everett M. Dirksen U.S. Courthouse to inquire whether Defendant had been released. A USMS official replied that Defendant had not been released. As the government later disclosed, USMS emailed ICE less than 20 minutes later, at 8:17 a.m., asking "[d]o you have an idea for pickup?" and an ICE deportation officer responded by email at 8:31 a.m., stating that another deportation officer would respond "to set up a pickup time" and providing that other ICE officer's telephone number. Id. at 3. Court staff, meanwhile, contacted counsel to schedule a telephonic status hearing on Defendant's release, and the Court held that hearing at 11 a.m. on September 26. 9/26/22 Tr. At the hearing, the prosecutor stated that the government had continued to hold Defendant at least "in part" because of the ICE detainer, which rendered Defendant's release "unlawful[ ]," the government said. Id. at 3-4. The prosecutor added that the government was seeking to lift the detainer request "so that Mr. Hurtado could be released pursuant to this Court's order with regard to his . . . pretrial supervision with location monitoring." Id. Asked if the government objected to an order commanding forthwith release of Defendant, the government stated that it did not object but added: "I think that everyone needs this time to follow procedure in terms of not, you know, unlawfully disregarding a detainer that had been lodged." Id. at 4. The Court expressed that "in the interest of judicial restraint," the Court did not wish to enter an order for forthwith release if the Court "really doesn't need to order the Marshals Service to do something," given that the government had represented that "[the] detainer is being lifted so that he will be released." Id. at 4-5.

The government then candidly stated that as of earlier on the morning of September 26, "the detainer still had not been lifted this morning but my understanding . . . is that it was in the process of being lifted so I just wanted to make sure that . . . your Honor is aware that I don't actually know that it has been lifted as of this moment." Id. at 5. The Court became concerned about just how much longer Defendant might be held as a result of the ICE detainer request while it continued to be in the process of being "lifted," and the Court asked the prosecutor when the detainer would be lifted, with ICE being "a very busy agency." Id. at 6. The prosecutor candidly responded that she did not know how long the process would take, and that although her impression was that "it was not going to be a long process in terms of today," she had "made a lot of assumptions there and I shouldn't have." Id. Before concluding the hearing, the Court added that it "may enter a more directive order." Id.

Very shortly after the conclusion of the September 26 hearing, the Court ordered USMS to release Defendant forthwith. 9/26/22 Orders (D.E. 5, 6). The Court also ordered the government to supply the Court with additional information about the ICE detainer request, any immigration warrant, the circumstances of Defendant's detention over the weekend, and the government's legal basis for its position that the ICE detainer operated as a legal bar to implementation of the Release Order. 9/26/22 Order (D.E. 6) at 2-3. The government's response, filed on September 29, stated that (unknown to the Court and the prosecutor at the time of the September 26 telephonic hearing and the Court's order for forthwith release) at 10:34 a.m. on September 26, an ICE deportation officer had notified USMS that ICE had cancelled the detainer on the request of the U.S. Attorney's Office, and sometime later on September 26, Defendant was released from USMS custody. Gov't Resp. at 3-4 and n.3. ICE appears to have issued an immigration warrant (DHS Form I-200) - a document separate from the ICE detainer request - on September 26, as the warrant the government supplied to the Court bears the date of September 26, five days after the date of the ICE detainer request.²

The government's contention that it had legal authority for continuing to hold Defendant in USMS custody beyond his ordinary time of release under the Release Order was as follows: (1) Congress under 8 U.S.C. § 1231 has authorized ICE to arrest and detain persons whom ICE has probable cause to believe are removable non-citizens; and (2) the ICE detainer request itself "provided USMS with legal authority to hold the defendant after the Court issued the bond order." Gov't Resp. at 4. The first of those two propositions is non-controversial but also not...