United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
government's motion, the court held a detention hearing
under the Bail Reform Act, 18 U.S.C. § 3142(f).
For the following reasons, the court concludes the defendant
will be released subject to conditions.
presumption of detention does not apply in this case:
Defendant is charged with committing the crime of identity
theft in violation of 42 U.S.C. § 408.
has no criminal history. He has lived in the United States
since 2012, and he has not left this country since then. He
has family in both his country of citizenship, El Salvador,
and in the United States. He is engaged to be married to
Megan Curry, a United States citizen and the mother of
Defendant's 10-month old child. Ms. Curry has agreed to
be a third-party custodian if Defendant is released.
Defendant and Ms. Curry would live in her mother's home.
the circumstances presented, I find no evidence that
Defendant poses a risk of harm to the public if released. I
further find that even assuming such a risk exists, it can be
sufficiently ameliorated by imposing conditions of release.
As to the latter issue, the undersigned magistrate judge has
investigated how this court has historically viewed the risk
of harm and flight posed by defendants charged with identity
fraud. Based on the release/detention records for the
District of Nebraska for the last 15 years, United States
citizens with no prior criminal history who are facing
charges of identity theft are routinely released on
conditions pending trial. There is no reason to believe that the
risk of harm posed by identity theft is greater when
committed by an illegal alien compared to those legally
present in this country. In fact, the contrary may well be
true: that is, a citizen's use of another's identity
to commit fraud or steal is likely more harmful, and it may
evidence a greater level of criminal thinking and intent,
than Defendant Argueta-Espinoza's alleged use of
another's identity (or a wholly fictitious identity) to
aside Defendant's El Salvador citizenship and contacts in
that country, his past use of a false name, and his illegal
presence in the United States, the court finds Defendant
poses no, or only a very minimal, risk of flight. Defendant
has been in this country continuously for six years. He has a
fiancé and an infant child in Nebraska who are both
citizens of this country. Further, Defendant's
fiancé is willing to serve as a third-party custodian
who will live with the defendant and report to the court if
Defendant threatens and begins to leave the country.
the court must decide if Defendant's illegal presence in
this country and ties to El Salvador warrant detention. If
released, Defendant will enter ICE custody. From there, he
may be deported before these criminal proceedings are
compete. To ameliorate that risk, the undersigned magistrate
judge entered an unorthodox order, temporarily releasing
Defendant to his criminal defense counsel's custody so
the defendant could attend his immigration hearing. The goal
of this order was to communicate with the immigration court
and obtain some assurance that if released by this court, ICE
would not immediately deport Defendant. That effort was a
waste of time. The immigration judge would not permit
Defendant and his criminal defense counsel to raise the issue
for discussion in that forum.
leaves the undersigned magistrate judge to decide the core
underlying question: Does a defendant's potential
deportation by ICE pending the disposition of federal
criminal charges pose a serious risk that the defendant
“will flee” as that term is used under the Bail
Reform Act? 18 U.S.C.A. § 3142 (f)(2)(A). For the
reasons explained in the recent opinion of Chief Judge
Leonard Strand, (United States v. Villatoro-Ventura,
2018 WL 4376983, at *1 (N.D. Iowa Sept. 12, 2018)), I find
the answer is “No.” Specifically, I emphasize
that under existing federal regulations, ICE can delay
deportation when federal criminal charges are pending. See 8
C.F.R. § 215.2 and 215.3(g). See United States v.
Resendiz-Guevara, 145 F.Supp.3d 1128, 1136 (M.D. Fla.
2015) (“In light of Section 215.3(g) and that initially
there was cooperation between ICE and the U.S. Attorney's
office here, the Court believes that the Government must show
why it lacked the ability to prevent Defendant's
departure through a stay or departure control, which it
failed to do in the instant case.”).
By delivering the defendant to the United States
Attorney's Office in this case, rather than simply
deporting him immediately, ICE yielded to the judgment of the
prosecutorial arm of the Executive Branch that the
public's interest in criminally prosecuting the defendant
was greater than the public's interest in swiftly
Defendant's prosecution is thus the result of both the
United States Attorney's Office and ICE-two Executive
Branch agencies- exercising their discretion in a coordinated
effort to serve the public interest as they see it. To argue
now, as the government does, that ICE's interest in
deporting the defendant would suddenly trump the United
States Attorney's interest in prosecuting the defendant
ignores the cooperation (and exercise of discretion) that
brought, the defendant before this Court in the first place.
It also presumes that ICE would immediately remove a
defendant retained on bond and thus frustrate his criminal
prosecution, when ICE itself has found that the departure of
a defendant to a pending criminal proceeding is prejudicial
to the interests of the United States.
United States v. Marinez-Patino, 2011 WL 902466, at
*7 (N.D. Ill. Mar. 14, 2011).
fact that ICE will not agree or cannot be trusted to delay
deportation- that separate agencies within the Executive
Branch do not communicate and cooperate-cannot serve to
deprive a defendant of his rights under the Eighth Amendment
and the Bail Reform Act. Moreover, the testimony of
Defendant's proposed third-party custodian was credible,
and I conclude her custodial supervision of Defendant will
sufficiently ameliorate any risk of flight that may exist.
Accordingly, the government's motion to detain must be
denied. See, e.g., United States v. Montoya-Vasquez,
2009 WL 103596, at *4 (D. Neb. Jan. 13,
2009)(“The Bail Reform Act does not permit
this court to speculate on the ‘risk' that a
defendant would not appear in this court due to his being
removed from this country by the same government that is
prosecuting him.”); United States v. Tapia,
924 F.Supp.2d 1093 (D.S.D. 2013) (“[E]vidence of an ICE
detainer alone does not merit detention under the Bail Reform
Act.”); United States v. Jocol-Alfaro, 840
F.Supp.2d 1116, 1117 (N.D. Iowa 2011) (holding that despite
an ICE detainer, an illegal alien charged with falsely
claiming U.S. citizenship and using false Social Security
numbers to obtain employment was entitled to pretrial release
with conditions where the defendant had family ties to the
area and minimal criminal history).
IT IS ORDERED:
government's motion ...