United States v. Camacho-Porchas

Honorable Leslie A. Bowman United States Magistrate Judge

REPORT AND RECOMMENDATION

Honorable Leslie A. Bowman United States Magistrate Judge

The District Court referred this case to the Magistrate Judge for a Report and Recommendation on the Motion to Dismiss Indictment with Prejudice, filed by the defendant on 8/8/21. (Doc. 68) Defendant Jesus Francisco Camacho-Porchas, argues that when he was ordered released from custody in the pending criminal case, his detention and deportation by immigration authorities was in violation of his Fifth and Sixth Amendment rights. The government removed him from the jurisdiction in violation of the district judge's release order, interfering with his ability to communicate with his attorney and depriving him of his right to appear for trial. He argues that the only appropriate remedy is to dismiss the indictment with prejudice.

The government filed its response on 8/23/21. (Doc. 69) The government does not object to dismissal of the indictment, stating at the status conference that it intended to file a motion to dismiss, but the defendant filed his motion first. The government, however, asks the Court to dismiss the indictment without prejudice.

At a pre-trial status conference held on 9/24/21 the parties agreed that oral argument was not necessary. The matter was submitted to the Court on the pleadings. The only issue before the Court is whether to dismiss the indictment with or without prejudice.

Charge :

The defendant is charged in a four-count indictment with false use of passport, aggravated identity theft, false claim to U.S. citizenship and illegal entry, in violation of 18 U.S.C. § 1542, 18 U.S.C. §§ 1028A(a)(1), (b) and (c)(7), 18 U.S.C. § 911, and 18 U.S.C. § 1325(a). The indictment was issued by the Grand Jury on 11/18/20. (Doc. 3).

Motion to Dismiss with Prejudice :

The defendant argues that his Fifth and Sixth Amendment rights were violated when he was deported and removed from the United States after being released by the District Court on pre-trial conditions and while his criminal case is still pending. He claims that the government's actions have interfered with the attorney-client relationship and deprived him of his right to mount a defense and proceed to trial, in violation of the U.S. Constitution. The only adequate remedy is dismissal with prejudice.

The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion to dismiss with prejudice.

Factual and Procedural Background :

Mr. Camacho-Porchas was arrested on 11/23/20 (Doc. 7) after being indicted on 11/18/20 on charges of false use of a passport, aggravated identity theft, false claim to U.S. citizenship and illegal entry. (Doc. 3) He was arraigned on 12/11/20. (Doc. 16) At his detention hearing on 12/15/20 the Magistrate Judge ordered him released on conditions, as recommended by Pre-Trial Services in the report addendum. (Docs. 15 and 16) The government requested a stay, which the Court granted, to allow an appeal to the District Judge.

The government filed two supplements in support of its position for detention. (Doc. 21 and 23) The defendant filed a response. (Doc .22) The second Pre-Trial Services addendum continued to recommend release. (Doc. 26) At the 1/6/21 hearing, and after the posting of a property bond, the District Judge set conditions and ordered Mr. Camacho-Porchas released. (Doc. 32) Condition number six ordered that the defendant not travel outside the state of Arizona without prior court permission.

The original PTS report and each of the 2 addenda state that the defendant lacks legal status in the U.S. and that ICE considers the defendant deportable.

Upon release, and as anticipated, Mr. Camacho-Porchas was detained by Immigration and Customs Enforcement (ICE) and remained in their custody until this Court scheduled a hearing for 4/23/21 regarding the government's motion to reopen the detention hearing and the defendant was returned temporarily to U.S. Marshal's custody.The government argued that Mr. Camacho-Porchas took affirmative steps to leave the district, in violation of his conditions of release. The defendant argued that the government should elect whether it chooses a criminal prosecution or deportation but should not be able to skirt a district court's order of release by detaining a defendant in immigration custody. The defendant then only had the Hobson's choice of remaining in custody for an unknown period of time or agreeing to be deported.

Mr. Camacho-Porchas appeared by video-teleconference, with his consent, pursuant to the CARES Act.

The Magistrate Judge asked for additional briefing to determine exactly how the order of removal came to be. The government filed a memorandum on 5/10/21 (Doc. 49), and on 5/19/21 provided the Court with a recording of the immigration hearing, which the Court reviewed. The defendant filed a response on 5/12/21. (Doc. 51) A hearing was held on 5/14/21.

The government explained in its motion and oral argument that the immigration proceedings commenced when the defendant was served with a Notice to Appear (NTA) by the Department of Homeland Security (DHS). The Notice alleged that Mr. Camacho-Porchas was present in the United States without authorization. On March 19, 2021 at the master calendar hearing the immigration judge explained that the defendant may be able to apply for relief from removal. The defendant asked for a bond. The request was denied because the judge relied on the government's notice that listed him as an arriving alien, making him ineligible for a bond. Department counsel stated that she would have to check to see if the defendant entered through a Port of Entry.

The case was continued to 4/6/21 to allow the defendant to secure counsel. Also, the immigration judge advised the department's counsel that the NTA was facially invalid for several reasons. She directed counsel to file a superseding NTA prior to the next hearing, and to serve it on the defendant. At the 4/6/21 hearing the judge questioned the department's counsel about why a superseding NTA had not been filed. There was further discussion about whether the defendant was an arriving alien. Counsel argued that an I-261 was filed which could cure the defects in the NTA. The judge stated that there was no conformed copy filed, which could dure the defects in the NTA. In response to the court's inquiry Mr. Camacho-Porchas stated he had not received a copy. The judge stated that since neither the court nor the defendant was served the defects were not cured.

The defendant asked if he could be deported or if he would have to wait for the next hearing. The judge advised him that he had to wait because of the government's errors in the charging document. The judge again explained that the NTA lacked information regarding the manner of entry. The hearing was continued to 4/15/21.

Mr. Camacho-Porchas was not represented by counsel at his hearings. At the final hearing the defendant admitted the allegations. The judge found him removable. The judge told him that he may qualify for cancellation of removal but a conviction in the pending criminal case could preclude that relief. Department counsel concurred. The defendant asked if an application would prolong his detention because he couldn't stand being in custody much longer and just wanted to reunite with his family. He again asked for and was denied a bond because as an arriving alien he did not qualify. The defendant explained that if he could stay in the United States with his family that is what he would prefer, but if not, he would choose removal. The judge ordered him removed. She explained his appeal rights, which the defendant struggled to understand. Both the government and Mr. Camacho-Porchas waived appeal. The government did not object to Mr. Camacho-Porchas's removal from the United States.

Upon becoming aware of the deportation order the government filed an emergency motion on 4/16/21 to reopen the detention hearing. (Doc. 40). On 5/26/21 this Court issued an order denying the motion and releasing the defendant. (Doc. 57). On 6/23/21, after hearing argument from both parties, the District Judge affirmed the magistrate judge's order releasing the defendant in accordance with the Bail Reform Act (BRA). Trial was scheduled for 7/13/21. (Doc. 62) Mr. Camacho-Porchas was removed from the United States to Mexico. The instant motion followed. (Doc. 68).

None of the facts are in dispute.

DISCUSSION :

Defendant Camacho-Porchas requests that the Court exercise its supervisory power to dismiss the indictment with prejudice due to his removal by Immigration and Customs Enforcement (ICE) in contravention of the District Judge's release order pursuant to the Bail Reform Act (BRA). He argues that the government abandoned its prosecution in favor of removal proceedings when it chose to deport him after his release on conditions in this case. Defendant further alleges that when the government removed him it violated his Fifth and Sixth Amendment rights.

The government agrees that the indictment should be dismissed but argues that dismissal without prejudice is the appropriate remedy. It claims that the defense has not been impaired and if Mr. Camacho-Porchas “was to return to the jurisdiction today, his prosecution would continue as expected.” (Doc. 69, p.4, lns.19-20)

Dismissal of charges “is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available. U.S. v. Barrera-Moreno, 951 F.2d 1089, 1092 (9^th 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 the 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.” U.S. v. Hasting, 461 U.S. 499, 505 (1983) (internal citations and quotations omitted). One of the purposes of the Court's supervisory powers is “to implement a remedy for violation of recognized rights.” Id.

The instant case involves the interaction between the BRA and the INA, and the effect on a criminal prosecution when ICE removes a defendant from the United States after entry of a lawful release order under the BRA. A court's decision to release a defendant pending trial despite the existence of an ICE detainer does not strip ICE of its authority to detain and remove an alien, but ICE may not exercise that authority without consequence to the government's prosecution. If the government jeopardizes the district court's ability to try the defendant, by placing him in immigration detention or removing him, “the district court may craft an appropriate remedy.” U.S. v. Santos-Flores, 794 F.3d 1088, 1091 (9^th Cir. 2015). The constitutional infringement must have “some adverse effect upon the effectiveness of counsel's representation or [produce] some other prejudice to the defense.” U.S. v. Morrison, 449 U.S. 361, 364 (1981). “One of the three traditional ways to show prejudice is by demonstrating that the defense was impaired.” See U.S. v. Corona-Verbera, 509 F.3d 1105, 1116 (9^th Cir. 2007).

Once the defendant was released pending trial under the BRA, the Executive Branch was obliged to either abandon the criminal prosecution and proceed with removal or stay removal and release the defendant from custody. By opting to proceed immediately with Defendant's removal, the government violated his statutory right to be released from custody under the BRA, as well as his Sixth Amendment right to counsel, and his rights under the Speedy Trial Act pursuant to 18 U.S.C. § 3161(c)(1). The Speedy Trial Act requires that a defendant be tried within 70 days from the filing of the information or indictment, or from the date the defendant first appeared before a judicial officer, whichever occurs later.

Although eight motions to continue trial have been filed by the defendant, as early as 2/10/21 the defense filed its second motion to continue trial (Doc. 34) because the defendant was “currently detained in another jurisdiction, Santa Cruz County, Arizona”, after he was ordered released pursuant to the BRA. The last three motions indicate that defense counsel needed time to attempt to meet with his client to prepare for trial, which is now scheduled for 10/26/21. (Docs. 63, 66, 71). The impediment to counsel meeting with his client and the defendant's inability to appear for trial is the government's detention and removal of the defendant from the jurisdiction in contravention of the Court's release order. None of the excludable grounds for delay under § 3161(h) appear to apply.

The issue before this Court has been raised, litigated, and decided in several cases in this district where the facts are similar to the facts in the instant case. See U.S. v. Francisco Munoz Lutz, CR-19-0692-RM(BGM), U.S. v. Maria Munoz-Garcia, CR-19-1670-TUC-JGZ(EJM), U.S. v. Audon Castro-Guzman, CR-19-2992-TUC-CKJ(LCK), and U.S. v. Juan Carlos Laurean-Lozoya, CR-18-0700-TUC-RM(BGM). The facts in the present case may be even more egregious than those in the cases above because it appears that the immigration judge denied a bond based on the government's erroneous statement that Mr. Camacho-Porchas was an arriving alien. Without the misinformation the defendant would likely have posted bond, been released and been present in this jurisdiction to meet with counsel and be present for trial.

In Lutz the defendant was ordered released by the Magistrate Judge and then was taken into immigration custody. He was indicted on four marijuana trafficking-related charges. Subsequently the defendant was removed from the United States to Mexico and counsel filed a motion to dismiss with prejudice. The Magistrate Judge found that the removal violated the defendant's Sixth Amendment right to counsel, that the constitutional violation was “solely due to the actions of the Government” and recommended that the District Judge dismiss the indictment with prejudice. The District Judge adopted the Report and Recommendation, emphasizing “that the tension between lawful release orders under the Bail Reform Act (“BRA”) and actions taken by ICE under the Immigration and Nationality Act (“INA”)…results not from statutory language but from the failure of ‘two Article II agencies' to ‘coordinate their respective efforts.'” U.S. v. Barrera-Omana, 638 F.Supp.2d 1108, 1111-12 (D. Minn. July 23, 2009). The Court also relied on 18 U.S.C. § 3142 to explain that the risk of nonappearance must involve a volitional act, not an ICE detainer and removal. Citing Santos-Flores, 794 F.3d at 1091-92. The indictment was dismissed with prejudice due to the “ongoing violation of Defendant's Sixth Amendment rights.” And “in order to promote respect for the BRA and to deter ICE and the U.S. Attorney's Office from continuing to engage in turf battles in lieu of inter-agency cooperation.”

In Munoz-Garcia the District Judge adopted the Magistrate Judge's Report and Recommendation and dismissed the indictment with prejudice after the defendant was ordered released pursuant to the BRA. She was subsequently taken into immigration custody and removed from the United State to Mexico. The Magistrate Judge found that the removal violated the defendant's “statutory right to be released from custody under the BRA, as well as her Sixth Amendment right to counsel.” The District Judge found that the removal compromised the defendant's rights under the Speedy Trial Act and her right to counsel. The Court concluded that the defendant's inability to assist in her defense was a direct result of the government's decision to remove her rather than because of the defendant's volitional act. See U.S. v. Ailon-Ailon, 875 F.3d 1334, 1339 (10^th Cir. 2017) (“We hold that, in the context of § 3142(f)(2), the risk that a defendant will ‘flee' does not include the risk that ICE will involuntarily remove the defendant.”); see also Santos-Flores, 794 F.3d at 1091 (“As a number of district courts have persuasively explained, the risk of nonappearance referenced in 18 U.S.C. § 3142 must involve an element of volition.”)

Ultimately the Court stated that “whether DHS does or does not have authority under the INA to detain a person for removal proceedings after that person has already been released under the BRA, and whether the United States Attorney's Office does or does not always have the authority or the effective ability to intervene in order to halt a removal proceeding, the fact remains that in this case, as a result of executive branch operation, the Defendant has been deported and is consequently disadvantaged in preparing a defense in her case, jeopardizing this Court's ability to fairly try her.”

The District Judge in Castro-Guzman also adopted the Magistrate Judge's Report and Recommendation (R & R) and ordered the indictment dismissed with prejudice. The District Judge had ordered the defendant released on conditions. The defendant was detained and removed from the United States by immigration authorities. The R & R explains that the Court in the District of Arizona “has repeatedly dismissed cases when a defendant was removed prior to resolution of the criminal proceedings.” Furthermore, “the U.S. Attorney's Office has done nothing to attempt resolution of this ongoing issue.” The Court found that “the government's removal of Defendant has impacted his ability to communicate with counsel and participate in his criminal case, in violation of his right to counsel under the Sixth Amendment.” The R & R concluded that “this is not an isolated event within this District as the government has been on notice of this issue for well over two year.”

As early as 2018 in Laurean-Lozoya, the District Judge adopted the Magistrate Judge's R & R and dismissed an indictment with prejudice under similar facts to the present case. The Magistrate Judge ordered the defendant released pursuant to the BRA. The government appealed the order to the District Judge, who affirmed the release order. The defendant was never released because he was detained by immigration authorities and removed from the United States to Mexico. The R & R found that defendant's questioning by ICE agents prior to his removal and the removal itself constituted a violation of the defendant's Sixth Amendment rights and that the violation was due solely to the actions of the government. The Magistrate Judge recommended dismissal with prejudice.

The position of the Court in the District of Arizona could not be clearer. The government continues to engage in the same procedures and practices that have consistently resulted in dismissals of indictments with prejudice. It has made its choice to deport defendants in lieu of pursuing criminal prosecutions. Removing defendants from the country instead of complying with the Court's release orders creates impediments to defendants trying to mount defenses against their charges. It leaves them without access to counsel or the ability to attend hearings and trials, all in violation of the BRA and the U.S. Constitution.

RECOMMENDATION :

In view of the foregoing, it is recommended that, after its independent review of the record, the District Court GRANT the defendant's motion to dismiss the indictment with prejudice. (Doc. 68)

The government may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No. reply to objections shall be filed unless leave is granted from the District Court.

The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.