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United States v. Pacheco-Poo

United States District Court, N.D. Iowa, Cedar Rapids Division

December 3, 2018



          C.J. Williams United States District Judge


         This matter is before the Court on defendant's Second Motion to Dismiss (Doc. 33).[1] The government timely filed a resistance. (Doc. 46). For the following reasons, the Court denies the motion.


         Immigration and Customs Enforcement (“ICE”) officers arrested defendant on October 2, 2018, when defendant appeared at an ICE office at the request of ICE officers handling immigration matters related to defendant's wife and children. Defendant was arrested on immigration charges because he was subject to an order of deportation.

         On October 11, 2018, the government filed a criminal complaint against defendant, charging him with the crime of being found in the United States after Illegal Re-entry, in violation of 8 U.S.C. § 1326(a). (Case 18-mj-354, Doc. 2). The criminal warrant for his arrest was executed the same day and defendant was removed from ICE custody and placed in the custody of the United States Marshal. (Id., Doc. 5). Apparently, at about the same time defendant came into the Marshal's custody, ICE filed a detainer against defendant.[2] Defendant made his initial appearance the same day before the Honorable Mark. A. Roberts, United States Magistrate Judge. (Id., Doc. 8). Defendant waived a detention hearing at that time. (Id.).

         On October 17, 2018, a grand jury returned an indictment charging defendant with being found in the United States after having been removed from the United States, in violation of 8 U.S.C. § 1326(a). (Doc. 2). Defendant waived initial appearance and arraignment and entered a written plea of not guilty. (Doc. 4).

         On November 1, 2018, defendant filed a motion for pretrial release. (Doc. 10). On November 9, 2018, defendant appeared before Judge Roberts for a detention hearing. During the hearing, the government explained that if the court released defendant, ICE would immediately take him into custody pursuant to its detainer and begin the process of removing him from the United States. (Doc. 21; Tr. at 35). The government asserted that ICE could remove him from the United States within a few weeks, making him unavailable for trial. (Id.). Judge Roberts ordered defendant released on a personal recognizance bond, and he entered a written order to that effect. (Doc. 15). Judge Roberts stayed his order releasing defendant pending the government's filing of its motion appealing the order. (Doc. 14).

         On November 9, 2018, the government appealed Judge Roberts' order. (Doc. 17). On November 14, 2018, the Court denied the government's appeal, finding under the factors of 18 U.S.C. § 3142 that the government had not proven that there was a serious risk that defendant would flee or pose a danger to others. (Doc. 20). The Court ordered defendant released from custody pursuant to the Order Setting Conditions of Release entered by Judge Roberts.

         Upon release from the custody of the United States Marshal, ICE immediately took defendant into custody pursuant to its detainer. On November 16, 2018, the government filed a motion to expedite the trial, arguing that ICE has begun proceedings to remove defendant. (Doc. 26, at 2). The government went on to say:

ICE (part of the Department of Homeland Security) has indicated that it intends to proceed with the removal, and removal of defendant is likely to occur before the current trial date. Therefore, in light of the Court's order, there is a substantial risk of nonappearance of the defendant at trial.

(Id., at 2 n.1).


         The resolution of this motion turns on the interplay between two statutes, the Bail Reform Act of 1984 (“BRA”), 18 U.S.C. § 3142, et seq., and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. The BRA addresses a federal court's authority to detain a defendant for purposes of prosecution on federal charges. In pertinent part, the INA addresses the authority of the Department of Homeland Security (“DHS”) to detain an alien for purposes of deportation. Defendant argues that a federal court's decision to release a defendant pursuant to the BRA bars the DHS from detaining that same person pursuant to the INA. The Court finds otherwise.

         A. The BRA

         The BRA applies to all persons charged with a federal crime, regardless of immigration status. In assessing whether a defendant should be released, 18 U.S.C. § 3142(a) establishes four options: (1) release on personal recognizance or upon execution of an unsecured appearance bond under § 3142(b); (2) release on one or more conditions outlined in § 3142(c); (3) temporary detention to permit revocation of conditional release, deportation, or exclusion under § 3142(d); or (4) detention pursuant to § 3142(e). The court may order detention of an arrestee pending trial only if the government demonstrates after an adversarial hearing that no release 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).

         The only provision of the BRA that differentiates between the treatment of aliens and citizens-§ 3142(d)-permits a “temporary detention to permit . . . deportation, or exclusion” if the judicial officer determines that the defendant “is not a citizen of the United States or lawfully admitted for permanent residence” and “may flee or pose a danger to any other person or the community.” Id. at § 3142(d)(1)(B), (d)(2).

         Specifically, in full, Section 3142(d) provides:

(d) Temporary Detention To Permit Revocation of Conditional Release, Deportation, or Exclusion.-If the judicial officer determines that-
(1) such person-
(A) is, and was at the time the offense was committed, on-
(i) release pending trial for a felony under Federal, State, ...

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