United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Currently pending before the Court is Defendant Francisco Alejandro Betancourt-Valenzuela’s Motion to Dismiss the Indictment with Prejudice/Motion for Sanctions Based on Outrageous Governmental Conduct (“Motion to Dismiss”) (Doc. 32). The Government filed its Response Re: Defendant’s Motion to Dismiss Re: Outrageous Government Conduct (“Response”) (Doc. 34), and Defendant filed his Reply (Doc. 38). Defendant is charged with one count of Conspiracy to Possess with Intent to Distribute Cocaine and Heroin in violation of Title 8, United States Code, Section 846; one count of Possession with Intent to Distribute Cocaine in violation of Title 8, United States Code, Sections 841(a)(1) and 841(b)(1)(C); one count of Possession with Intent to Distribute Heroin in violation of Title 8, United States Code, Sections 841(a)(1) and 841(b)(1)(C); Conspiracy to Import Cocaine and Heroin in violation of Title 8, United States Code, Sections 963; one count of Importation of Cocaine in violation of Title 8, United States Code, Sections 952(a), 960(a)(1), and 960(b)(3); and one count of Importation of Heroin in violation of Title 8, United States Code, Sections 852(a), 960(a)(1), and 960(b)(3). Indictment (Doc. 26) at 1-3. Defendant Francisco Alejandro Betancourt-Valenzuela argues that his detention by United States Immigration and Customs Enforcement (“ICE”), despite having been validly released pursuant to the Bail Reform Act (“BRA”), 18 U.S.C. § 3141, et seq., warrants dismissal of the pending criminal matter pursuant to this Court’s supervisory powers. See Def.’s Mot. to Dismiss (Doc. 32).
Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On December 14, 2015, an evidentiary hearing was held before Magistrate Judge Macdonald, and the matter taken under advisement. Amended Minute Entry 12/14/2015 (Doc. 45). After the hearing, the Government provided the Court with supplemental information regarding the ICE detainer, as well as the status of Defendant’s immigration case. See Govt.’s Suppl. (Doc. 46). The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant’s motion and release him on his previously imposed conditions of release.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 28, 2015, Defendant Francisco Alejandro Betancourt-Valenzuela was charged in a criminal complaint and had his Initial Appearance in this matter. See Compl. (Doc. 1); Minute Entry 9/28/2015 (Doc. 3). Defendant Betancourt-Valenzuela is a Legal Permanent Resident. Order 10/9/2015 (Doc. 15) at 2. On September 30, 2015, Defendant Betancourt-Valenzuela again appeared before the Court for a detention hearing. Minute Entry 9/30/2015 (Doc. 4). Pre-trial Services recommended release with conditions, but the Government objected noting an outstanding ICE detainer. Id. The Court took the matter under advisement, instructing the parties to submit additional briefing on the issue of factors under Section 3142(g), Title 18, United States Code, as well as the impact of the ICE detainer. Minute Entry 9/30/2015 (Doc. 4).
On October 9, 2015, Magistrate Judge Markovich issued his Order weighing the factors delineated by the BRA and denying the Government’s motion for detention. Order 10/9/2015 (Doc. 15). As a result, Defendant Betancourt-Valenzuela was ordered released under the previously recommended conditions. Id. The Government appealed the magistrate judge’s ruling to Chief Judge Collins. Govt.’s Appeal (Doc. 16). On October 15, 2015, Chief Judge Collins adopted Magistrate Judge Markovich’s Order in part, and added the additional condition that Defendant Betancourt-Valenzuela post a $5, 000.00 cash or corporate surety bond. Amended Minute Entry 10/15/2015 (Doc. 21). The surety posted a cash bond the same date, and Defendant Betancourt-Valenzuela was released. Id. On November 6, 2015, Defendant was arraigned and indicted. Minute Entry 11/6/2015 (Doc. 30).
On November 10, 2015, ICE agents took Defendant Betancourt-Valenzuela from his Tucson residence and placed him into immigration custody. Def.’s Mot. to Dismiss at 7. On December 4, 2015, the Department of Homeland Security (“DHS”) issued an Immigration Detainer-Request for Voluntary Action to secure Defendant’s presence at a hearing regarding his motion to continue trial before Chief Judge Collins. See Minute Entry 12/8/2015 (Doc. 39); Govt.’s Suppl. (Doc. 46), Immigration Detainer (Exh. “1”). On December 14, 2015, the Immigration Judge granted DHS’s Motion to Administratively Close Defendant Betancourt-Valenzuela’s removal proceedings. Govt.’s Suppl. (Doc. 46), Order 12/14/2015 (Exh. “2”).
Defendant seeks dismissal with prejudice of the pending criminal matter or in the alternative a finding that ICE is in contempt of court if Defendant Betancourt-Valenzuela is not released from its custody within a specified time frame. See Def.’s Mot. to Dismiss (Doc. 32).
A. The Bail Reform Act of 1984
The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required . . ." U.S. Const. amend. VIII. Congress in enacting the BRA, determined that any person charged with a criminal offense shall be released pending trial: a) on personal recognizance; b) upon execution of an unsecured appearance bond; or c) on a condition or combination of conditions, unless “the judicial officer finds that no condition or combination of 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); see also 18 U.S.C. § 3142(a), (b). Moreover, “[o]nly in rare cases should release be denied, and doubts regarding the propriety of release are to be resolved in favor of the defendant.” United States v. Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015) (citations omitted).
In this case, Defendant Betancourt-Valenzuela was granted pre-trial release with conditions including the posting of a $5, 000.00 cash bond. To date, Defendant has not violated his conditions of release.
B. Immigration and Nationality Act
United States immigration law is embodied in the Immigration and Nationality Act of 1965 (“INA”), as amended. 8 U.S.C. § 1101, et seq. The United States Secretary of Homeland Security is “charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the ...