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United States v. Rodriguez-Palacios

United States District Court, D. Colorado

October 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE LUIS RODRIGUEZ-PALACIOS, Defendant.

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the United States' Emergency Motion for Stay and Motion to Vacate Order for Lack of Jurisdiction [#14] (the “Motion”). The District Judge construed the Motion as a motion for reconsideration of my order of release of Defendant Jose Luis Rodriguez-Palacios “because it contains arguments pursuant to 18 U.S.C. § 3142 that had not been previously raised” before me, and therefore she referred the Motion [#14] to me for adjudication. Order Referring Motion [#15]. Defendant subsequently filed a Response [#19] in opposition to the Motion [#14]. No. reply was permitted. See [#16].

         I. Background

         Defendant is charged by indictment with one count of illegal re-entry after a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). See [#1]. The indictment was filed on January 8, 2019, and an arrest warrant issued the same day. See [#1, #3]. Because Defendant was in state custody at Cheyenne Mountain Reentry Center in Colorado Springs, Colorado, the government requested a writ of habeas corpus ad prosequendum on September 10. See [#4]. The Writ was issued by the Court on September 12, directing that Defendant be held “at all times in custody as an agent of the United States of America until final disposition of the defendant's case, and immediately thereafter to return the defendant to the institution where he was confined.” See [#5, #6].

         On September 19, Defendant's arrest was noted on the docket and he appeared before me later that day for an Initial Appearance, Arraignment, Discovery and Detention Hearing. See [#7, #8]. At the hearing, the government requested: “Although the defendant is currently detained at the state level, . . . what the government would like to do would be able to preserve it[s] right to seek detention [at] the point at which the defendant would be released from state custody.” Hearing Tr. [#19-1] at 5.[1] Defendant's release date from state custody is indefinite but could be anywhere between “a couple months, ” see id., and September 29, 2020, Defendant's mandatory release date from state prison, see Id. at 24. Defendant objected to the government's request, arguing that he was subject to the Bail Reform Act's presumption of release and that the government had failed to justify a detention hearing. See Id. at 6-8. Ultimately, the Court concluded under the Bail Reform Act that there was no risk of flight because Defendant would be released into state custody, and then ordered probation to interview him as part of the pretrial release process. See 18 U.S.C. §3142(c).

         In the present Motion, the government argues that the release order should be vacated on three separate grounds. Motion [#14] at 3-8. First, the government argues that the Writ independently mandates federal detention. Id. at 3-4. Second, the government argues that the Bail Reform Act does not apply to a defendant appearing on a writ. Id. at 5-7. Third, the government argues that, even if the Bail Reform Act does apply, the Court should analyze the risk of flight without reference to state custody. Id. at 8. The Court begins with the second argument.

         II. Analysis

         A. Legal Standard: Motion for Reconsideration

         “Although the Federal Rules of Criminal Procedure do not authorize a motion for reconsideration, motions to reconsider in criminal prosecutions are proper.” United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011) (internal quotation marks omitted). “Grounds warranting a motion to reconsider” are the same as those in civil cases, including “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” United States v. Koerber, 966 F.Supp.2d 1207, 1211-12 (D. Utah 2013) (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)); accord United States v. Alvarez, No. 10-CR-203-SWS, 2015 WL 11202687, at *1 (D. Wyo. June 22, 2015). The government's Motion [#14] appears to rest on the third ground, i.e., the need to correct clear error or prevent manifest injustice.

         B. Whether the Bail Reform Act Applies to a Defendant Appearing on a Writ

         The government argues that the Bail Reform Act does not apply to a defendant appearing on a writ of habeas corpus ad prosequendum. Motion [#14] at 5-7. “A writ of habeas corpus ad prosequendum is an order issued by a federal district court requiring the state to produce a state prisoner for trial on federal criminal charges.” United States v. Ray, 899 F.3d 852, 858 n.2 (10th Cir. 2018) (citing United States v. Mauro, 436 U.S. 340, 357-58 (1978)); see also 28 U.S.C. § 2241(c)(5) (stating that the writ of habeas corpus shall extent to a prisoner if “[i]t is necessary to bring him into court to testify or for trial”).

         The Bail Reform Act provides that “[a] judicial officer authorized to order the arrest of a person under section 3041 of this title before whom an arrested person is brought shall order that such person be released or detained, pending judicial proceedings, under this chapter.” 18 U.S.C. § 3141(a) (emphasis added). Thus, under the plain terms of the Act, it applies only to “arrested person[s].” Id.

         The Tenth Circuit Court of Appeals does not appear to have directly addressed whether the Bail Reform Act applies to a person appearing before the Court under a writ of habeas corpus ad prosequendum. Thus, the Court begins by examining a similar case in which the First Circuit Court of Appeals determined whether a writ of habeas corpus ad prosequendum was an “arrest” for purposes of the Speedy Trial Act. United States v. Kelly, 661 F.3d 682, 687 (1st Cir. 2011). In relevant part, the Speedy Trial Act provides that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). The First Circuit noted that “[t]he question presented here is whether an appearance under a writ of habeas corpus ad prosequendum constitutes an ‘arrest' or a ‘summons' under” the Speedy Trial Act. Kelly, 661 F.3d at 687. The Speedy Trial Act, “by its terms, applies only where there is an ‘arrest' or service of a ‘summons' in connection with the relevant federal charges.” Id. (citing 18 U.S.C. § 3161(b)).

         The First Circuit held that “[i]ssuance of a writ of habeas corpus ad prosequendum is neither an arrest nor a summons.” Kelly, 661 F.3d at 687. “Unlike an arrest, where an individual is taken into custody, the writ requires only a temporary physical transfer of an already detained individual.” Id. (citing Black's Law Dictionary 124 (9th ed. 2009) (defining arrest as “[t]he taking . . . of a person in custody by legal authority . . . the apprehension of someone”).[2] “Full custody remains in the jurisdiction of detention; at best, custody under the writ is temporary and limited.” Kelly, 661 F.3d at 687. “Moreover, unlike a summons, the writ is issued not to the individual, but instead to the custodian, ...


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