United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
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.
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.
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.
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).
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).
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).
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).
Motion for Order to Show Cause
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).
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
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 ...