United States District Court, D. Colorado
RECOMENDATION REGARDING DEFENDANT'S MOTION TO
DISMISS AND ORDER VACATING THE EXISTING WRITS AND RETURNING
DEFENDANT TO INS CUSTODY
GORDON
P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
This
matter comes before the Court on a motion to dismiss filed by
Defendant (ECF # 75)[1], the Government's response (ECF# 80),
and Defendant's reply (ECF #81). The case has been
referred to this Magistrate Judge and falls under the Western
Slope/Grand Junction Protocol which allows me to address
dispositive motions on recommendation (ECF #49)[2] as the parties
have unanimously consented to my jurisdiction (ECF #17-this
Defendant's consent). The Court has reviewed the pending
motion, response, reply, and all attachments. The Court has
also considered the entire case file, the applicable law, and
is sufficiently advised in the premises. This Magistrate
Judge respectfully recommends that the motion be DENIED and
issues additional Orders modifying the writ of habeas corpus
as specifically set forth below.
On
December 30, 2018, this Court modified its earlier Order
detaining Defendant (ECF #12) and issued conditions of
release as to Defendant (ECF #38). This was based on
Defendant's motion to reconsider (ECF #28) which provided
the Court additional and corrected information and was not
opposed by the Government (ECF #37-in which the Government
recommended release). No party challenges this Court's
determination that conditions of release are appropriate
under the BRA.
Based
on the Court's December 30, 2019 Order, Defendant was
released from custody in this matter. However, he was then
transferred to ICE detention for removal proceedings.
See Defendant's motion (ECF #75, pp. 1-2).
This
matter proceeded apace and Defendant filed a notice of
disposition on July 30, 2019 (ECF #58). Based on that notice,
a change of plea hearing was set for 9/3/2019 and the
Government requested a writ to secure Defendant from ICE to
attend that hearing. This Court, in what now appears to be a
misguided attempt to be practical as to travel times and USMS
resources, ultimately issued that writ in a manner which
would allow Defendant to be held by the USMS for the time
needed to transport Defendant from his current ICE custody at
GEO (in the Denver area) to Grand Junction (some 250 miles
away and over two mountain passes) for the change of plea and
then to hold Defendant in Grand Junction for the
approximately 2-3 months until sentencing. This would have
avoided the need to transport Defendant back to GEO and then
to reverse the process in the fall/winter of 2019 and again
bring Defendant back to Grand Junction for sentencing.
Unfortunately,
that is not the end of the story. The Court was next informed
of the pending disbarment of Defendant's Counsel, Mr.
Ernest Gomez (ECF #64). While the disbarment date was delayed
until after the change of plea hearing, the Court found it
untenable to permit Defendant to proceed to a change of
plea-if even possible-with a soon to be disbarred attorney,
and thus immediately appointed CJA Counsel to represent
Defendant (ECF #66), while in no way foreclosing
Defendant's ability to again retain his own paid Counsel
should Defendant so choose. Based on Defendant's motion
the plea hearing was vacated (ECF #70) although the notice of
disposition was not withdrawn (ECF #68).
Defendant
now moves to dismiss on the basis that the use of the
immigration authority to detain Defendant while
simultaneously pursuing criminal charges-when the Court has
issued conditions of release under the Bail Reform Act
(BRA)-violates the BRA thus necessitating dismissal of the
indictment. Defendant is incorrect in this analysis. This
Court finds persuasive the recent Order issued by the
Honorable Judge Arguello, United States District Court Judge
for the District of Colorado, in that there is not an
irreconcilable conflict between the BRA and INA and that
there is an explicit contemplation of parallel proceedings.
United States v. Ramirez-Arenas, 2019 WL 2208529 *5
(D. Colo. 2019) (internal quotations and citations
removed-citing to United States v. Ailon-Ailon, 875
F.3d 1334 (10th Cir. 2017)). “ICE's
authority to facilitate an illegal alien's removal from
the country does not disappear merely because the U.S.
Marshall cannot detain him under the BRA pending his criminal
trial.” United States v. Vasquez-Benitez, 919
F.3d 546, 553 (D.C. Cir. 2019). No violation, either
Constitutional or statutory, exists when a Defendant is
granted conditions of release under the BRA but is held under
the INA. See Ramirez-Arenas, 2019 WL *5.
No
valid basis exists which would warrant dismissal of this
action. This Court has independently determined that
conditions of release are appropriate under the BRA and has
issued such conditions. The existence of a different
determination under the INA by a separate tribunal in a
parallel proceeding in no way precipitates a Constitutional
or statutory violation necessitating dismissal. Thus, this
Magistrate Judge respectfully recommends that the motion to
dismiss be DENIED.
As
alluded to supra, the issue herein is not the
existence of permissible parallel proceedings, but is instead
the manner in which this Court over-road its own BRA
determination by attempting to address a writ of habeas
corpus in a manner which was practical but inconsistent with
the conditions of release. Rather than issue a writ which
allowed Defendant to be held by the USMS pending resolution
of this matter, the writ should instead have been
significantly limited in scope to the time necessary for
transport and return for a particular proceeding. This
concern can be resolved and immediately alleviated by
vacating the offending writ. While this will may result in an
additional transport of Defendant-should Defendant after
consultation with his new Counsel determine to proceed with a
change of plea and follow-on sentencing, this may be
unavoidable given the current posture of this
matter.[3]
Therefore,
the Court respectfully recommends that the motion to dismiss
be DENIED.
The
Court Orders that both writs (ECFs #63 & 74) are hereby
vacated. The USMS Shall turn Defendant over to the INS (or
any other party having a hold on Defendant) should there
continue to be a hold on Defendant's person or release
Defendant on his conditions of release if no such hold(s)
exists.
It is
further Ordered that, in the future, the Government SHALL
move for such writ necessary to accomplish the limited
purpose of the hearing for which such writ may be necessary
and for no greater purpose.
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