United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
pending before the Court is Defendant's Motion to Dismiss
Indictment with Prejudice (Doc. 25). The Government has filed
its response and Defendant replied. Govt.'s Response in
Opp. to Def.'s Mot. to Dismiss Indict. with Prejudice
(Doc. 33); Def.'s Reply to Govt.'s Response to
Def.'s Mot. to Dismiss (Doc. 36). Defendant is charged
with one (1) count of attempting to use a document prescribed
by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, which he
knew to be forged, counterfeited, altered, or falsely made,
and which Defendant presented to Customs and Border
Protection officials at the DeConcini Port of Entry in
Nogales, Arizona, as proof that he had lawful authority to
legally enter in the United States from Mexico, in violation
of Title 18, United States Code, Section 1546(a). Indictment
to LRCrim. 5.1, this matter came before Magistrate Judge
Macdonald for an evidentiary hearing and a report and
recommendation. On August 17, 2018, oral argument was held
before Magistrate Judge Macdonald, and the matter taken under
advisement. Minute Entry 8/17/2018 (Doc. 40). The Magistrate
Judge recommends that the District Court, after its
independent review, grant Defendant's motion and dismiss
this matter with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
April 1, 2018, Defendant Juan Carlos Laurean-Lozoya was
arrested at the DeConcini Port of Entry in Nogales, Arizona.
See Compl. (Doc. 1). The following day, he was
charged in a criminal complaint and had his Initial
Appearance in this matter. See Compl. (Doc. 1);
Minute Entry 4/2/2018 (Doc. 2). Defendant was charged with
one count in violation of 18 U.S.C. § 1546 - false claim
to citizenship, and one count in violation of 18 U.S.C.
§1028 - document fraud. Compl. (Doc. 1).
April 9, 2018, Defendant chose to exercise his right to
reject the “flip-flop” plea offer, and proceeded
on to the Detention Hearing after waiving his right to a
preliminary hearing in exchange for early Jencks disclosure.
Minute Entry 4/9/2018 (Doc. 6). Because Pretrial Services had
not interviewed Defendant, the defense moved for a one day
continuance of the Detention Hearing in order to allow for
this interview. Id. Later that same day, Pretrial
Services conducted their interview with Defendant, and filed
a report recommending his release upon conditions, including
the third-party custodianship of Fernanda Mendoza, his
girlfriend. See Pretrial Services Rpt. (Doc. 7).
April 10, 2018, Magistrate Judge Ferraro ordered Defendant
released pursuant to 18 U.S.C. § 3142, adopting the
recommendations made by Pretrial Services. Minute Entry
4/10/2018 (Doc. 10). Although the Government did not object
to the release order at the time of the hearing, later in the
day it filed a motion to stay and review of the Order. Minute
Entry 4/10/2018 (Doc. 10); Govt.'s Mot. for Stay and
Review of Magistrate Judge's Release Order (Doc. 8).
Defendant's release was stayed, and he remained in
custody pending appeal before the Honorable Rosemary Marquez.
April 16, 2018, following written briefing by the parties,
Judge Marquez heard argument, and affirmed Magistrate Judge
Ferraro's order of release. Minute Entry 4/16/2018 (Doc.
16). Defendant was never released, however, because on April
17, 2018, the Government removed Defendant from the United
States. See Minute Entry 5/24/2018 (Doc. 22). Prior
to his removal Customs and Border Protection Officers
interrogated Defendant regarding the events of this case,
without his counsel being present or even made aware of the
interview. See Govt.'s Response (Doc. 33) at 2;
Def.'s Reply (Doc. 36) at 3. On April 25, 2018, the
Government indicted Defendant on one count of presenting
forged, counterfeited, altered, or falsely made documents to
Customs and Border Protection officials for entry at the
DeConcini Port of Entry in Nogales, Arizona. Indictment (Doc.
18). On May 24, 2018, the Government moved for an arrest
warrant, which the Court denied. Minute Entry 5/24/2018 (Doc.
22). On June 26, 2018, Defendant filed his motion to dismiss
seeks dismissal of this cause of action, because by having
him removed, the Government has made him unavailable for
trial and contravened Judge Marquez's release order.
Def.'s Mot. to Dismiss (Doc. 25) at 3-7. Defendant urges
that the Government did not have the authority to have
Defendant removed while his criminal action was pending.
Id. at 4-5. Further, Defendant urges that now that
he has been absented from this jurisdiction by action of the
Government, the criminal case should be dismissed with
prejudice. Id. at 5-7. The Government counters that
rules of statutory construction mandate Defendant's
removal; Defendant's reliance on United States v.
Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012) is
misplaced and it was wrongly decided; and dismissal with
prejudice is too harsh of a penalty. See Govt.'s
Response (Doc. 33). The Government's arguments are
without merit, and Defendant's motion should be granted.
The Bail Reform Act of 1984
Eighth Amendment to the United States Constitution provides
that "[e]xcessive bail shall not be required . . ."
U.S. Const. amend. VIII. In enacting the BRA, Congress
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).
shall “take into account the available information
concerning-” the nature and circumstances of the
offense; the weight of the evidence against the person; the
history and characteristics of the person; and the nature and
seriousness of the danger to any person or the community
posed by the person's release. 18 U.S.C. § 3142(g).
Nowhere among the factors for the Court's consideration
is the existence of an ICE detainer. In this case, Defendant
Laurean-Lozoya was granted pretrial release with conditions
including a third party custodian. Despite Judge
Marquez's Order, Defendant was never released.