United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge.
pending before the Court is Defendant Francisco Munoz
Lutz's Motion to Dismiss Indictment with Prejudice (Doc.
20). The Government has filed its response and Defendant
replied. Govt.'s Response in Opp. to Def.'s Mot. to
Dismiss Indict. with Prejudice (Doc. 22); Def.'s Reply to
Govt.'s Response to Def.'s Mot. to Dismiss (Doc. 23).
Defendant Francisco Munoz Lutz is charged with one (1) count
of conspiracy to possess with intent to distribute marijuana;
one (1) count of possession of marijuana with intent to
distribute; one (1) count of conspiracy to import marijuana;
and importation of marijuana. Indictment (Doc. 14).
to LRCrim. 5.1, this matter came before Magistrate Judge
Macdonald for an evidentiary hearing and a report and
recommendation. On June 6, 2019, oral argument was held
before Magistrate Judge Macdonald, and the matter taken under
advisement. Minute Entry 6/6/2019 (Doc. 26). On July 9, 2019,
Defense counsel filed a Factual Supplement to Motion to
Dismiss (Doc. 29). The Magistrate Judge recommends that the
District Court, after its independent review, grant
Defendant's motion and dismiss this matter with
FACTUAL AND PROCEDURAL BACKGROUND
February 22, 2019, Francisco Munoz Lutz was arrested at the
Naco, Arizona Port of Entry for knowingly and intentionally
possessing with intent to distribute less than 50 kilograms
of marijuana. See Compl. (Doc. 1). On February 25,
2019, he was charged in a criminal complaint and had his
Initial Appearance in this matter. See Compl. (Doc.
1); Minute Entry 2/25/2019 (Doc. 2). Defendant was charged
with possession and possession with intent to distribute
marijuana. Compl. (Doc. 1).
Lutz is a citizen of Mexico, previously granted Legal
Permanent Resident status in the United States by a U.S.
immigration agency. On February 27, 2019, Defendant had a
detention hearing before the Honorable Jacqueline M. Rateau.
Minute Entry 2/27/2019 (Doc. 4). Judge Rateau ordered the
Defendant released under certain conditions. Id.;
see also Order 2/27/2019 (Doc. 5). The United States
Marshal released Defendant from custody, in compliance with
the February 27, 2019 release order, but Immigration and
Customs Enforcement (“ICE”) immediately took him
March 4, 2019, Mr. Lutz was scheduled to appear for his
preliminary hearing before this Court, but was not present
because he was in ICE custody and not transported. Minute
Entry 3/4/2019 (Doc. 9). The hearing was continued until
March 6, 2019 so more information could be obtained about Mr.
Lutz's status. Id. On March 6, 2019, defense
counsel informed the Court that Mr. Lutz was in ICE custody,
which resulted in him missing court for the second time in
less than a week. Minute Entry 3/6/2019 (Doc. 10). Defense
counsel affirmatively requested that a preliminary hearing be
set within the fourteen (14) days required by Rule 5.1,
Federal Rules of Criminal Procedure. See Id. The
Court calendared the hearing for March 12, 2019 and directed
the Government to issue a Writ. Id. The government
applied for a habeas writ on March 7, 2019 (Doc. 11), and Mr.
Lutz appeared for Court on March 11, 2019. Minute Entry
3/11/2019 (Doc. 12).
March 11, 2019 hearing, Mr. Lutz although transported by the
U.S. Marshal, remained in ICE custody. Id. Through
counsel, Mr. Lutz reiterated his demand for a preliminary
hearing, which the Government indicated it was not prepared
to proceed on. Id. The Court ordered Defendant
released on the previously imposed conditions of release
imposed by Magistrate Judge Rateau on February 27, 2019.
March 13, 2019, Mr. Lutz was indicted by a grand jury. On
March 25, 2019, Mr. Lutz was arraigned, and the Court held a
discussion regarding his custody status. The Court stated in
its Minute Entry that “[t]he defendant is released as
to this case, in compliance with the Order filed 2/27/2019,
but will remain in ICE custody.” Minute Entry 3/25/2019
(Doc. 17). Mr. Lutz remained in ICE custody, but has since
been removed from the United States. Def.'s Factual
Suppl. (Doc. 29). Defense counsel has been unable to contact
Mr. Lutz. Id.
seeks dismissal of this cause of action, because “[t]he
government's choice to continue to detain Mr. Lutz
demonstrates intent to thwart this Court's lawful orders
issued pursuant to the BRA.” Def.'s Mot. to Dismiss
(Doc. 20) at 5. The Government argues that
Trujillo-Alvarez were wrongly decided, and
Valadez-Lara was implicitly overruled.
light of the Government's removal of Mr. Lutz, the Court
need not address these arguments. The Sixth Amendment
provides, in relevant part, that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the assistance of counsel for his defense.” U.S. Const.
amend. VI. “Defendant's deportation presents a
clear challenge . . . to his ability to consult with counsel,
to review the evidence against him[, ] and to prepare a
defense to the charge. . . . This constitutes a violation of
his Sixth Amendment right to counsel.” United
States v. Resendiz-Guevara, 145 F.Supp.3d 1128, 1138
(M.D. Fla. 2015).
is appropriate when the investigatory or prosecutorial
process has violated a federal constitutional or statutory
right and no lesser remedial action is available.”
United States v. Barrera-Moreno, 951 F.2d 1089, 1092
(9th Cir. 1991). “Guided by considerations of justice,
and in the exercise of supervisory powers, federal courts
may, within limits, formulate procedural rules not
specifically required by the Constitution or Congress. The
purposes underlying use of the supervisory powers are
threefold: to implement a remedy for violation of recognized
rights; to preserve judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before
the jury; and finally, as a remedy designed to deter illegal
conduct.” United States v. Hasting, 461 U.S.
499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). “It is
undisputed that Defendant's unavailability to face the
charges against him is not due to his own volition but the
Executive Branch's decision to deport him.”
Resendiz-Guevara, 145 F.Supp.3d at 1138.
“[B]ecause the Executive Branch elected to prioritize
deportation over the criminal prosecution the indictment
should be dismissed.” United States v.
Resendiz-Guevara, 145 F.Supp.3d 1128, 1137 (M.D. Fla.
Lutz has been removed from the United States and returned to
Mexico, he continues to suffer a violation of his right to
counsel in this matter. This violation of Defendant's
constitutional rights is solely due to the actions of the
Government. As such, the Court finds it ...