United States District Court, D. Arizona
Honorable Rosemary Marquez, United States District Judge.
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
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
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.)
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
Standard of Review
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.
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.)
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),
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
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.)
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).
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. ...