United States v. Laurean-Lozoya

          REPORT AND RECOMMENDATION

          HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE

         Currently 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 (Doc. 18).

         Pursuant 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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).

         On 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).

         On 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.

         On 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 (Doc. 25).

         II. ANALYSIS

         Defendant 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.

         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. 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).

         A court 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.

         B. Immigration ...