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United States v. Villalba

United States District Court, D. Nebraska

August 30, 2018



          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion for Order to Show Cause Why Case Should not be Dismissed (Filing No. 37) supported by a brief (Filing No. 40), and Defendant's Motion to Dismiss Based on Selective Prosecution and, or alternatively, for Additional Discovery (Filing No. 38) supported by a brief (Filing No. 39). The government filed a consolidated brief (Filing No. 46) in opposition to both motions. On August 2, 2018, Defendant filed a reply brief (Filing No. 47). The matter is now deemed fully submitted. For the following reasons, the undersigned magistrate judge recommends that the motions be denied, without a hearing.


         According to the Affidavit supporting the Criminal Complaint in this matter, Justin McCarthy, a Special Agent with the United States Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Homeland Security Investigations (HSI) first became aware of Defendant in February 2018, during a child exploitation investigation. Subsequent immigration queries by an HSI task force officer indicated that Defendant is a citizen of Mexico illegally present in the United States and was issued a Voluntary Return to return to Mexico on his own accord. On March 28, 2018, Defendant was arrested for immigration violations during the execution of a federal search warrant related to the separate child exploitation investigation and was transported to the Omaha Office of Enforcement and Removal Operations for processing. (Filing No. 1 at pp. 2-3).

         On April 13, 2018, Defendant was charged in this case with a Criminal Complaint for false representation of a Social Security number based upon information learned by ICE and HSI officers during the immigration investigation. (Filing No. 1). According to SA McCarthy's Affidavit, Defendant told investigators he had been working in construction at BC Drywall. Further investigation revealed Defendant had allegedly used an invalid Alien Registration number when completing Form I-9 for his employment. (Filing No. 1 at pp. 4-5). Defendant was arrested on the Complaint on April 16, 2018. An immigration detainer dated April 16, 2018, against the defendant's release was filed with the U.S. Marshal's Service requesting 48-hours' notice before Defendant's release in this criminal prosecution to allow ICE to assume custody. (Filing No. 5 at p. 5; Filing No. 13 at p. 6).

         A detention hearing was held before Magistrate Judge Susan M. Bazis on April 24, 2018. Pretrial services recommended that Defendant be granted pretrial release, which the government did not oppose. Magistrate Judge Bazis ordered that Defendant be released pursuant to a personal recognizance bond with conditions. (Filing Nos. 16-17).

         On April 25, 2018, Defendant filed a “Motion for Order to Show Cause Why This Case Should Not Be Dismissed” (Filing No. 14). Defendant asserted that, although he was “released” from custody by Magistrate Judge Bazis, he remained detained in the Douglas County Jail pursuant to the immigration detainer, pending a hearing before an immigration judge on May 1, 2018. (Filing No. 15 at p. 3). Prior to resolution of that motion, on May 4, 2018, the government filed a brief asserting that Defendant's motion was moot because the immigration judge released Defendant from the immigration detainer subject to a $3, 000 bond, which Defendant satisfied on May 3, 2018. (Filing No. 21). Defendant has not been detained in jail or prison since that date. Defendant thereafter withdrew his motion. (Filing Nos. 25-26).

         On May 22, 2018, an Indictment was filed in this case charging Defendant with three counts: (1) false representation of his social security number in violation of 42 U.S.C. § 408(a)(7)(B); (2) unlawful use of an identification document in violation of 18 U.S.C. § 1546(b); and (3) making a false claim of United States citizenship, in violation of 18 U.S.C. § 1015(e). (Filing No. 27). Defendant was arraigned on May 31, 2018, and again released on conditions. (Filing No. 32).

         On July 20, 2018, Defendant filed the instant motions before the Court. Defendant has renewed his motion for order to show cause why this case should not be dismissed, arguing that his continued detention in ICE custody and payment of an ICE bond after this Court ordered his pretrial release violated the Bail Reform Act, 18 U.S.C. § 3141, et seq. (Filing No. 40). Defendant also moves the Court to dismiss the Indictment based on selective prosecution, or in the alternative, for discovery related to his selective prosecution claim. (Filing No. 38).


         I. Motion for Order to Show Cause

         Defendant requests that the Court order the government to show cause why the Indictment should not be dismissed due the government's violation of this Court's order setting conditions of pretrial release. (Filing No. 40 at p. 7). Defendant asserts that the government violated the Court's pretrial release order and the Bail Reform Act when Defendant was detained in ICE custody after Magistrate Judge Bazis ordered that he be released. Although Defendant is no longer detained, he maintains that he is still in “custody” pursuant to the immigration detainer by virtue of the bond and separate release plan created by the immigration court after he was released on conditions in this prosecution. (Filing No. 47).

         In the last several years, district courts around the country have addressed similar situations where a defendant is ordered to be released under the Bail Reform Act, but is then taken into ICE custody pursuant to an ICE detainer obtained under the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. (“INA”). See, e.g., United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167, 1176 (D. Or. 2012); United States v. Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228, at *2 (S.D. Ala. Sept. 20, 2013); United States v. Ventura, No. 17-CR-418, 2017 WL 5129012, at *2 (E.D.N.Y. Nov. 3, 2017); United States v. Boutin, 269 F.Supp.3d 24, 26 (E.D.N.Y. 2017), appeal withdrawn, No. 18-194, 2018 WL 1940385 (2d Cir. Feb. 22, 2018); United States v. Rangel, No. 4:18-CR-6002-SMJ, 2018 WL 3105922, at *5 (E.D. Wash. Mar. 21, 2018); United States v. Alvarado-Velasquez, No. 3:18-CR-00158, 2018 WL 3968582, at *1 (M.D. Tenn. Aug. 20, 2018). The majority of district courts that have addressed the issue have followed the district court's analysis in Trujillo-Alvarez and concluded that “the purpose of an ICE detainer is for ‘arresting and removing the alien[ ]”' but may not be utilized “for the purpose of avoiding the pretrial release provisions of the [Bail Reform Act].” Trujillo-Alvarez, 900 F.Supp.2d at 1176; see also, Boutin, 269 F.Supp.3d at 26 (“[O]nce a criminal prosecution is initiated and the Government has invoked the jurisdiction of a federal district court, the Bail Reform Act is controlling. When an Article III court has ordered a defendant released, the retention of a defendant in ICE custody contravenes a determination made pursuant to the Bail Reform Act. As such, the Government's criminal prosecution cannot proceed and must be dismissed with prejudice.”); Ventura, No. 17-CR-418 (DLI), 2017 WL 5129012, at *3)(“[O]nce prosecution is the Government's chosen course of action, the Executive may not attempt to obviate the bond determination of this Court by enforcing the ICE detainer. Accordingly, the Government now must make a choice. It can continue down the path it originally chose, namely to prosecute Defendant, or it can seek Defendant's removal from the United States and continue his detention by ICE. It cannot do both. . . The Government either must release Defendant under the bond conditions set in this case and continue the instant prosecution, or dismiss the indictment with prejudice, forego its illegal reentry prosecution, and proceed with Defendant's removal.”).

         In this case, it does appear that the government violated the Court's pretrial release order entered pursuant to the Bail Reform Act when Defendant was detained in ICE custody after Magistrate Judge Bazis ordered that he be released. However, Defendant is admittedly no longer detained by ICE. Although the parties reference a second “release plan” entered by the immigration judge, no evidence of that release plan is before the Court. Based on the record before the Court, Defendant is not being detained and the government has apparently made its decision to proceed with this criminal ...

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