United States v. Lutz

          ORDER

          Honorable Rosemary Marquez, United States District Judge.

         On July 19, 2019, Magistrate Judge Bruce G. Macdonald issued a Report and Recommendation (“R&R”) (Doc. 30), recommending that this Court grant Defendant Francisco Munoz Lutz's Motion to Dismiss (Doc. 20) and dismiss the indictment in the above-captioned case with prejudice. The Government filed an Objection. (Doc. 31.) The Court then ordered supplemental briefing (Doc. 34; see also Docs. 35, 36) and held oral argument (Doc. 42). For the following reasons, the Government's Objection will be overruled, Judge Macdonald's R&R will be accepted and adopted, and Defendant's Motion to Dismiss will be granted.

         I. Background

         Defendant was arrested on February 22, 2019. At a detention hearing held on February 27, 2019, Magistrate Judge Jacqueline M. Rateau ordered Defendant released on conditions. (Docs. 4, 5.) A preliminary hearing was set for March 4, 2019 (Doc. 2), but Defendant did not appear because he was being held in the custody of U.S. Immigration and Customs Enforcement (“ICE”) (Doc. 9). The preliminary hearing was continued to March 6, 2019 (Doc. 9), but again Defendant did not appear because he was being held in ICE custody (Doc. 10). The preliminary hearing was again continued, this time to March 11, 2019 (Doc. 10), on which date Defendant appeared via writ but the Government was not prepared to move forward (Doc. 12).

         Defendant was indicted on March 13, 2019 (Doc. 14) and arraigned on March 25, 2019 (Doc. 17). He is charged with one count of conspiracy to possess with intent to distribute marijuana, one count of possession with intent to distribute marijuana, one count of conspiracy to import marijuana, and one count of importation of marijuana. (Doc. 14.)

         On April 23, 2019, Defendant filed a Motion to Dismiss (Doc. 20), alleging that his ICE detention violated his rights under the Bail Reform Act and the Eighth Amendment, and that dismissal with prejudice was an appropriate remedy. After Defendant's Motion was fully briefed (Docs. 22, 23), Judge Macdonald heard oral argument (Doc. 26). Following oral argument, while the Motion was under advisement by Judge Macdonald, Defendant filed a Factual Supplement (Doc. 29) advising that Defendant had been removed from the United States to Mexico, and that defense counsel had been unable to make contact with him following his removal. On July 19, 2019, Judge Macdonald issued the pending R&R (Doc. 30), recommending that this Court grant Defendant's Motion to Dismiss.

         II. Standard of Review

         A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). A 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.^[1]

         III. Discussion

         Judge Macdonald's R&R finds that Defendant's removal from the United States violates his Sixth Amendment right to counsel, that the constitutional violation is solely due to the actions of the Government, and that dismissal with prejudice is appropriate. (Doc. 30 at 3-4.) The Government filed an Objection, arguing that Judge Macdonald failed to address the issues and record placed before him by the parties in their pleadings and oral arguments, instead sua sponte identifying a Sixth Amendment issue and making findings unsupported by the record. (Doc. 31 at 6.) The Government argued that this Court should reject the R&R and deny Defendant's Motion to Dismiss as moot. (Id. at 6-8.)

         This Court rejected the Government's argument that Defendant's Motion to Dismiss should be denied as moot, and ordered supplemental briefing addressing whether Defendant's removal from the United States requires dismissal of the indictment with prejudice. (Doc. 34.) Defendant's Supplemental Brief argues that the Government is asking this Court to protect its interest in prosecution when that interest was undermined by the Government's own constituent agencies. (Doc. 35 at 4.) Defendant complains that, notwithstanding United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015), ^[2] the Government in this district has routinely sought the pretrial detention of non-citizen defendants and then routinely disregarded release orders with respect to such defendants. (Id. at 2-4.) Defendant argues that dismissal with prejudice is appropriate to deter the Government's conduct and promote respect for the law. (Id. at 4-6.)

         The Government's Supplemental Brief argues that Defendant's Motion to Dismiss relies solely on United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012) and United States v. Laurean-Lozoya, No. CR-18-0700-TUC-RM (BGM), 2018 WL 5928169 (D. Ariz. Oct. 23, 2018), adopted by 2018 WL 5924181 (Nov. 13, 2018), and that both of those cases have been called in doubt by United States v. Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018), United States v. Vasquez-Benitez, 919 F.3d 546 (D.C. Cir. 2019), and United States v. Nunez, 928 F.3d 240 (3d Cir. 2019). (Doc. 36 at 3-4.) The Government further argues that Trujllo-Alvarez does not support Defendant's Motion. (Id. at 4.) The Government continues to argue that the factual findings of Judge Macdonald's R&R are unsupported by the record, and further argues that the R&R misapplies the applicable law by conflating the entire “Executive Branch” with “the investigatory or prosecutorial process” contemplated in United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991). (Id. at 5-7.) Finally, the Government argues that dismissal with prejudice is permitted only in cases of flagrant prosecutorial misconduct, and here prosecutorial misconduct was not alleged or found. (Id. at 8.)

         This case involves a tension between lawful release orders under the Bail Reform Act (“BRA”) and actions taken by ICE under the Immigration and Nationality Act (“INA”). That tension results not from statutory language but from the failure of “two Article II agencies” to “coordinate their respective efforts.” United States v. Barrera-Omana, 638 F.Supp.2d 1108, 1111-12 (D. Minn. July 23, 2009).

         Under the BRA, any person charged with a criminal offense shall be released pending trial-on personal recognizance, bond, or 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)-(c). “[I]n determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, ” the BRA directs the judicial officer to consider a number of factors involving the offense and the defendant. See 18 U.S.C. § 3142(g). Immigration status is not among those factors. Santos-Flores, 794 F.3d at 1090. Because “the risk of nonappearance referenced in 18 U.S.C. ...