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United States v. Aleman-Duarte

United States District Court, E.D. Tennessee, Knoxville

January 15, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
PIO JOSE ALEMAN-DUARTE, Defendant.

          MEMORANDUM AND ORDER

          Debra C. Poplin United States Magistrate Judge

         All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. Defendant Aleman-Duarte is alleged [Doc. 11] to be an alien and is charged with illegal reentry after a prior removal or deportation in violation of 18 U.S.C. § 1326(a). The Government has asked the Court to detain the Defendant pending trial.[1" name="FN1" id= "FN1">1] The Defendant moves [Doc. 22] the Court to release him pending his trial, arguing that the Bail Reform Act, 18 U.S.C. § 3142(f), requires his release without a detention hearing in this case. He contends that the Government is not entitled to a detention hearing, because he is not charged with a crime specified in 18 U.S.C. § 3142(f)(1)(A)-(E), he does not present a serious risk of flight, and he does not present a serious risk of obstruction of justice or intimidation of a witness or juror. The Defendant asks the Court to release him to live with his cousin Ms. Liliana Vessy-Herrera in her home in Philadelphia, Pennsylvania.

         The Court held a motion hearing on the Defendant's Motion for Pretrial Release [Doc. 22] on December 16, 2019. Assistant United States Attorney William A. Roach, Jr., appeared on behalf of the Government. Assistant Federal Defender Mary Margaret Kincaid represented Defendant Pio Jose Aleman-Duarte, who was also present and participated with the aid of an interpreter. The Court heard the oral arguments of counsel and requested that the United States Probation Officer check into the Defendant's proposed living situation and amend the Pretrial Services Report, with information on the suitability of the proposed conditions. The Court asked the parties to file supplemental briefs on or before December 30, 2019. The Probation Officer submitted an amended Pretrial Services Report to the Court and the parties. The Defendant timely filed a Brief on Motion for Pretrial Release [Doc. 25] and an amended brief [Doc. 26]. The Government timely filed a Response to Amended Pretrial Services Report [Doc. 27].

         For the reasons discussed herein, the Court finds that Defendant Aleman-Duarte poses a serious risk of flight and that no combination of conditions will reasonably assure his appearance at trial. Accordingly, his Motion for Pretrial Release [Doc. 22] is DENIED, and he is ORDERED DETAINED pending further proceedings in this case.

         I. ANALYSIS

         “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 1 U.S. 739');">481 U.S. 739, 755 (1987). Our Supreme Court has held that “the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception.” Id. Congress enacted the Bail Reform Act (“the Act”) in order “to ensure the appearance of criminal defendants at judicial proceedings.” United States v. Veloz-Alonzo, 10 F.3d 266');">910 F.3d 266, 270 (6th Cir. 2018) (observing that assuring appearance at trial is one of the “primary purposes” of the Act); United States v. Silvestre-Gregorio, No. 2:18-CR-155-JRG-MCLC, Doc. 61, at 4 (E.D. Tenn. June 21, 2019) (Corker, MJ). Additionally, the Act serves “to safeguard the courts' role in adjudicating the guilt or innocence of defendants[.]” Salerno, 481 U.S. at 753; Silvestre-Gregorio, No. 2:18-CR-155-JRG-MCLC, Doc. 61, at 4. The Act provides four options to the judge presiding over an initial appearance in a criminal case: (1) Release the defendant on his or her own recognizance; (2) release the defendant on conditions; (3) detain the defendant temporarily “to permit revocation of conditional release, deportation, or exclusion”; or (4) detain the defendant until trial, if the judge finds, after a hearing, that “no condition or combination of conditions will reasonably assure” the defendant's appearance or the safety of others. 18 U.S.C. § 3142(a) & -(e)(1).

         The Act permits the government attorney to move for pretrial detention of a criminal defendant in a limited number of circumstances. The government may request detention when the defendant is charged with a crime of violence, § 3142(f)(1)(A); an offense involving a maximum penalty of ten years or more in prison, § 3142(f)(1)(B); any felony if the defendant's criminal history includes convictions of two or more specific crimes, § 3142(f)(1)(C); or a felony involving a minor victim or the possession or use of firearms, § 3142(f)(1)(D). None of those circumstances apply in this case. The government may also request detention if the case involves “(A) a serious risk that [the defendant] will flee; or (B) a serious risk that [the defendant] will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.” 18 U.S.C. § 3142(f)(2). In the instant case, the Government moves for detention, arguing pursuant to section 3142(f)(2)(A) that Defendant Aleman-Duarte poses a serious risk of flight.

         The Defendant contends that he cannot be detained, because the immigration detainer lodged against him prevents him from being a serious risk of flight. Alternatively, he argues that he does not present a serious risk of flight, because the “exceptional circumstances” necessary for an individual to be a serious risk of flight do not exist in this case. Finally, the Defendant asserts that even if the Court were to permit a detention hearing (i.e., to find that he is a serious flight risk), conditions exist that would reasonably assure his appearance for further proceedings in this case. The Court examines each of these arguments in turn.

         A. Serious Flight Risk

         As stated above, the government may seek detention and the court may hold a detention hearing, if a criminal defendant presents a serious risk of flight. 18 U.S.C. § 3142(f)(2)(A). Defendant Aleman-Duarte states that Immigration and Customs Enforcement (“ICE”) placed a detainer on him, while he was in state custody, and immediately detained him, when he was released from state custody on August 2, 2019 [Doc. 22, p.2');">p.2].[2] He contends that he is not a serious flight risk, because he will remain in the custody of the federal government, if ICE enforces its detainer; his potential removal from the country is not volitional; and a finding of serious risk of flight requires “exceptional circumstances” that do not exist in this case.

         Relying on the holding in United States v. Mendoza-Balleza, No. 4:19-CR-1-TRM-SKL-1, Doc. 40 (E.D. Tenn., May 23, 2019), the Defendant asserts that he cannot pose a serious risk of flight, because he will remain in government custody, if his immigration detainer is enforced. In Mendoza-Balleza, the Court held the defendant, who was charged with illegal reentry and for whom an ICE detainer and pending final order of removal existed, was not a serious flight risk under § 3142(f)(2)(A). Id. at 4. The government in that case acknowledged the defendant did not present a serious risk of flight, because if the Court did not detain him, he would be immediately detained by ICE and deported within ninety days, without first appearing in an immigration court. Id. at 3-4. Accordingly, the Court held that “as long as [Defendant Mendoza-Belleza] remains in the custody of the executive branch, albeit with ICE instead of the Attorney General, the risk of flight is admittedly nonexistent.” Id. at 4.

         The undersigned finds the instant case to be factually distinct from that in Mendoza-Balleza. Here, the Government does not concede that Defendant Aleman-Duarte is not a flight risk. See Silvestre-Gregorio, No. 2:18-CR-155, Doc. 61, at 7 (distinguishing Mendoza-Balleza, because the government did not concede that the defendant poses no risk of flight). Instead, the Government emphatically argues [Doc. 27] that Defendant Aleman-Duarte poses a serious risk of flight, because he is charged with illegal reentry and faces removal, has no legitimate defense to the illegal reentry charge, has no community ties or employment, and has previously used an alias to avoid detection. Moreover, unlike in Mendoza-Balleza, it is not apparent that Defendant Aleman-Duarte will go immediately into ICE custody and be deported within ninety days. First, the Court observes that the existence of an ICE detainer “is not custody. A detainer is merely a request by ICE for the court to hand over the defendant when the court's business with that defendant is concluded.” United States v. Cornejo-Garcia, No. 3:19-CR-90-LJM-HBG, Doc. 13, at 5 (E.D. Tenn., June 6, 2019) (Inman, MJ) (citing Rios-Quiroz, et al. v. Williamson County, Tenn., No. 3-11-1168, 2012 WL 394354, *4 (M.D. Tenn. Sept. 10, 2012)). Second, it does not appear that an order of removal exists for this Defendant, as it did for the defendant in Mendoza-Balleza. Finally, the Court notes that an ICE officer was the affiant on the affidavit supporting the criminal complaint, which provided the basis for Defendant Aleman-Duarte's arrest in this case. The fact that the Defendant was brought into federal court on the sworn affidavit of an ICE officer suggests that ICE does not intend to deport the Defendant immediately.

         Next, the Defendant pivots from arguing that the ICE detainer provides the basis for releasing him because he will inevitably remain in government custody, to arguing that the Court should not consider the ICE detainer or his illegal status at all. The Defendant argues that Congress did not list citizenship as a factor in the Act and, thus, the Defendant must be treated the same as a citizen for purposes of detention or release. United States v. Trujillo-Alvarez, p.2');">p.2d 1167');">900 F.Supp.2');">p.2d 1167, 1174 (D. Ore. 2012). He also contends that the existence of an ICE detainer should not weigh against him, because the risk of non-appearance through involuntary deportation would be caused by the government's actions, not his own volitional acts. See United States v. Barrera- Omana, p.2');">p.2d 1108');">638 F.Supp.2');">p.2d 1108, 1111 (D. Minn. 2009); United States v. Montoya-Vasquez, No. 4:08-CR-3174, 2009 WL 103596, at *5 (D. Neb. Jan. 13, 2009). The Defendant asserts that the failure to appear under the Act relates only to the risk that a defendant will choose to flee or abscond and not to a situation in which he cannot appear due to ICE preventing his appearance.

         The undersigned agrees with Judge Corker in Silvestre-Gregorio, that the Court may consider the presence of an ICE detainer but that it is only one “factor in the analysis. It is not dispositive. It neither mandates release nor compels detention.” No. 2:18-CR-155-JRG-MCLC, Doc. 61, at 7-8. “[M]ost courts have concluded the existence of an immigration detainer is a relevant factor for consideration when the court undertakes its assessment of a defendant's risk of flight.” United States v. Valadez-Lara, No. 3:14 CR 204, 2015 WL 1456530, at *6 (N.D. Ohio Mar. 30, 2015) (collecting cases); see also United States v. Ramirez-Salguero, No. 2:18-mj-30606, 2018 WL 6321918, at *3 (E.D. Mich. Dec. 4, 2018) (considering ICE detainer among other factors and finding non-citizen defendant with ICE detainer has “a strong incentive to flee to avoid deportation”); United States v. Salas-Urenas, 1');">430 Fed.Appx. 721, 723 (10th Cir. 2011) (holding that a “defendant's immigration status and the existence of an ICE detainer are relevant to the detention decision as part of the history and characteristics of the defendant”).[3] Moreover, the Court observes the Act expressly compels ...


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