United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge.
before the Court is Defendants Michaela Denise Ventura and
Kevin Ronnie Tungovia's Joint Motion to Dismiss. (Doc.
51.) They argue the indictment against them should be
dismissed because the Government violated their due process
rights by removing the material witness from the United
States despite their attempt to appeal his release to the
District Court. On February 20, 2018, Magistrate Judge Leslie
A. Bowman held oral argument on the Motion to Dismiss. (Docs.
75, 77.) On March 6, 2018, the Magistrate Judge issued a
Report and Recommendation recommending that the Court deny
the Motion to Dismiss. (Doc. 83.) Defendant Ventura filed an
Objection to the Report and Recommendation, which was joined
in by Defendant Tungovia. (Docs. 99, 101.) The Government
filed a Response to the Objection. (Doc. 106.) For the
following reasons, the Report and Recommendation will be
adopted in part, and the Motion to Dismiss will be denied.
October 25, 2017, Defendants were indicted for alien
smuggling and conspiracy to commit alien smuggling. (Doc.
15.) During a status conference held on October 20, 2017, the
Magistrate Judge ordered that the material witness be
temporarily detained pending his video deposition. (Doc. 11.)
On November 2, 2017, Defendants moved to accelerate a status
conference in order to address the material witness's
ability to speak Spanish and to determine whether a Mam
interpreter was needed. (Doc. 18.) During the status
conference, counsel for the material witness advised that the
witness spoke and understood Spanish, and the Magistrate
Judge determined that the witness's understanding of
Spanish was sufficient to go forward with the video
deposition. (Doc. 22.)
video deposition took place on December 7, 2017. (Docs. 41,
42.) A status conference was held on the same day, where
Defendants objected to the release of the material witness
because they wished to investigate inconsistencies between
his testimony and the Government's
disclosure. (See Doc. 45 at 3-5.) The
Magistrate Judge determined that release of the material
witness would not hinder or prejudice Defendants'
investigation and, consequently, ordered the release of the
material witness over Defendants' objection.
(Id. at 5-6; Doc. 40.) Defendants orally moved to
stay the material witness's release so that they could
appeal the release order to the District Court. (Doc. 45 at
8-9.) The Magistrate Judge denied the request for a stay
because Defendants cited no authority permitting a third
party to request a stay of release of a material witness, and
General Order 11-15 provides that “[f]ollowing the
deposition(s), the Court shall order the release of the
material witness(es) from custody absent a showing that
further detention is necessary to prevent a failure to
justice.” (Id. at 9-13; Gen. Order 11-15,
December 11, 2017, Defendants filed a Notice of Appeal of
Magistrate Judge's Order Releasing Material Witness and
Objection of Magistrate's Denial of Defendants'
Motion to Stay Release. (Doc. 43.) Defendants requested oral
argument to address whether the Magistrate Judge had
authority to release the material witness and deny a stay of
release, but failed to request a stay of the Magistrate
Judge's release order. (See id.) On December 19,
2017, the Government filed a Response arguing that the appeal
was moot because the material witness was deported by the
Department of Homeland Security on December 15, 2017. (Doc.
46.) On December 29, 2017, this Court dismissed the appeal as
moot. (Doc. 47.)
January 9, 2018, Defendants filed the Motion to Dismiss.
(Doc. 51.) They argued that the Government violated their
constitutional rights by failing to allow them the
opportunity to appeal the release order because it deported
the material witness. Defendants also contended the
Magistrate Judge was without authority to enter the release
order. Defendants argued that release of a material witness
is a “dispositive matter” that must be finally
determined by the District Court and that the Magistrate
Judge should have therefore issued a report and
recommendation instead of a final order. The Government filed
its Response on January 23, 2018, arguing that it complied in
good faith with the release order because there was no stay
in place, i.e., the Magistrate Judge denied a stay, and
Defendants failed to request one from the District Court.
(Doc. 57.) The Government also argued that the dispute is not
ripe because it is not clear the material witness will be
unavailable at trial. Finally, the Government argued that the
Magistrate Judge was authorized to enter the release order.
Magistrate Judge issued the Report and Recommendation on
March 6, 2018, recommending that the Motion to Dismiss be
denied. (Doc. 83.) First, the Magistrate Judge rejected the
notion that a magistrate judge is without authority to order
the release of a material witness because, by its own terms,
28 U.S.C. § 636(b)(1)(A) permits a magistrate judge,
with specified exceptions, to “hear and determine
any pretrial matter, ” and release of a
material witness is not within the exceptions. Second, the
Magistrate Judge disagreed that deporting the material
witness pursuant to the release order was outrageous conduct
sufficient to establish a constitutional violation. The
Magistrate Judge also concluded that Defendants failed to
demonstrate actual prejudice.
Standard of Review
district judge “may accept, reject, or modify, in whole
or in part, the findings or recommendations” of a
magistrate judge. 28 U.S.C. § 636(b)(1). The 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.” Id. The advisory
committee's notes to Rule 72(b) of the Federal Rules of
Civil Procedure state that, “[w]hen no timely objection
is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation” of a magistrate judge. Fed.R.Civ.P.
72(b) advisory committee's note to 1983 addition; see
also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th
Cir. 1999) (“If no objection or only partial objection
is made, the district court judge reviews those unobjected
portions for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
Magistrate Judge's Authority to Enter Release
broadly make two arguments. First, they contend that a
magistrate judge lacks authority to order the release of a
material witness. As explained below, they are incorrect.
Second, they contend that the Magistrate Judge should have
stayed the release order so they could appeal the order to
this Court. The Court agrees. However, Defendants' Motion
will be denied because they have not shown the deportation
was done in bad faith or that they were prejudiced by the
argue that video deposition testimony is not a
“pretrial matter” that falls within a magistrate
judge's authority under 28 U.S.C. §
636(b)(1)(A). They argue that, because the material
witness was removed from the United States, the testimony is
trial testimony and thus the deposition and decision to
release the witness must be done on a report and
recommendation basis pursuant to § 636(b)(3). Section
636(a)(2) provides magistrate judges with the power to issue
orders pursuant to 18 U.S.C. § 3142. Title 18 U.S.C.
§ 3144 permits “a judicial officer” to
preside over the detention and release of a material witness
in accordance with § 3142. Therefore, § 636(a)(2)
confers magistrate judges with authority to determine whether
a material witness should be released. Defendants further
argue that, even if video depositions and release of material
witnesses are “pretrial ...