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United States v. Flores Peraza

United States District Court, D. Arizona

October 18, 2018

United States of America, Plaintiff,
v.
Alonso Severiano Flores Peraza, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS INDICTMENT

          Bernardo P. Velasco United States Magistrate Judge.

         On May 9, 2017, Defendant Alonso Severiano Flores Peraza was arrested for making false statements in a passport application. The Defendant was indicted [Doc. 10] on July 18, 2018. On September 7, 2018, Defendant filed a Motion to Dismiss Indictment [Doc. 23]. The Government filed its Response [Doc. 25] on September 20, 2018, and the Defendant filed a Reply [Doc. 26] on September 27, 2018.

         The matter came on for Evidentiary Hearing before the Court on October 15, 2018. No witnesses were called. The evidence presented was:

         1) The Court's Order releasing the Defendant on conditions.

         2) Defendant's Exhibit 1: E-mail.

         3) Plaintiff's Exhibit 1: Immigration Court Order dated August 1, 2018. Plaintiff's Exhibit 2: ASR dated August 7, 2018.

         Plaintiff's Exhibit 3: Immigration Court Order dated August 23, 2018. Plaintiff's Exhibit 4: Immigration Bond dated August 27, 2018.

         The Court, having considered the briefing, arguments, and evidence presented, recommends that the District Judge, after his independent review and consideration, enter an order DENYING Defendant's Motion to Dismiss Indictment [Doc. 23].

         Facts

         Defendant Alonso Severiano Flores Peraza was ordered released with conditions by a U.S. Magistrate Judge on June 29, 2018. The Defendant was thereafter released into the custody of Immigration and Customs Enforcement (ICE).

         On August 1, 2018, while in ICE custody, the Immigration Court held the Defendant subject to a $10, 000.00 bond. The Defendant was scheduled for arraignment on August 3, 2018, before the U.S. District Court. The Defendant was not present at his arraignment on August 3, 2018, because he was in ICE custody.

         The arraignment was reset for August 17, 2018. After a conference between defense counsel and the prosecutor, the arraignment was accelerated to August 10, 2018. In order to effectuate the arraignment, the Government submitted an Attorney Special Request (ASR) for the Defendant's transfer into the temporary custody of the U.S. Marshal's Service (USMS) to conduct the arraignment.

         The Defendant appeared before the Immigration Court on August 9, 2018, and denied the allegations of the Removal Petition. He was then transferred into USMS custody for his arraignment on August 10, 2018. At the arraignment, the Defendant raised no objection to his custodial appearance. The Court's docket lists him as released, but in ICE custody. After the arraignment, the USMS returned the Defendant into ICE custody on August 13, 2018.

         On August 13, 2018, the Defendant filed a Motion to return the Defendant into ICE custody. The Motion was denied as moot.

         On August 27, 2018, the Immigration Court set an $8, 500.00 bond, which the Defendant posted, and was released from all governmental confinement. The Defendant was present and out of custody at the Motion hearing that is the subject of this Report and Recommendation.

         The Defendant has not at any time asserted his right to a speedy trial. The Defendant has not alleged that the Government has obtained any evidence prejudicial to his defense during his detention by ICE or the USMS since the Release Order of June 29, 2018. Further, the U.S. Attorney has advised the Court and defense counsel that the Government will not ...


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