United States v. Espinoza- Ochoa

          MEMORANDUM OPINION

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE

         On October 19, 2018, the Court entered an order denying the government's appeal of the Magistrate Judge's order of release of the defendant (doc. 18) filed on September 14, 2018. In that order, the Court indicated that a memorandum opinion detailing the denial of the appeal was forthcoming. This is that memorandum opinion.

         A brief recitation of the procedural history of this case is necessary for context. On August 8, 2018, a three-count indictment was returned against Ana Espinoza-Ochoa (“Ochoa”) charging her with illegal reentry of a deported alien in violation of 8 U.S.C. § 1326(a) and two counts of making a false statement in violation of 18 U.S.C. § 101. On September 6, 2018, the defendant was arrested and made her first appearance in this Court. At that time, the government orally moved for Ochoa's detention alleging that she was a flight risk. On the same day, the Bureau of Immigration and Customs Enforcement (“ICE”) filed a detainer with the United States Marshal to hold the defendant in the event that she was released by the Court.

         On September 12, 2018, the United States Magistrate Judge held a detention hearing pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3142. At the conclusion of the detention hearing, the Magistrate Judge determined that Ochoa was not a risk of flight and ordered her released on “electronic monitoring with the usual conditions of release.” (Doc. 22 at 42). The defendant was not released, however, because ICE executed its detainer and assumed custody of her. Immediately upon taking the defendant into custody, ICE transferred her to the LaSalle Detention facility in Jena, Louisiana, ostensibly to begin removal proceedings.

         On September 14, 2018, the government filed an appeal of the Magistrate Judge's detention order and a motion to stay. The Magistrate Judge denied the government's motion to stay.

         On September 17, 2018, utilizing form USA-475, the Assistant United States Attorney requested that ICE return the defendant to the district for trial on November 5, 2018. On October 11, 2018, ICE released custody of the defendant to the United States Marshal solely at the request of the Assistant United States Attorney. On the same day, ICE executed another detainer on the defendant.

         On October 17, 2018, the Court held a hearing to determine the location of the defendant, and to determine the basis for her detention in light of the Magistrate Judge's order that she be released. On October 19, 2018, the Court denied the government's appeal of the Magistrate Judge's release order, and the defendant was released on conditions. ICE did not execute its second detainer, and the defendant remains on bond pending sentencing.

         DISCUSSION

         “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Ailon-Ailon, 875 F.3d 1334, 1336 (10^th Cir. 2017) (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)). The Bail Reform Act of 1984 provides that if, after a hearing, “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.” 18 U.S.C. § 3142(e)(1). While the Bail Reform Act provides a mechanism for detaining a defendant in certain limited circumstances, the Act was enacted to prevent needless pretrial detention by defendants, and the presumption is release absent a demonstration that the defendant is likely to flee or is a danger to the community.^[1] The policy consideration of the Bail Reform Act “is to permit release under the least restrictive condition compatible with assuring the future appearance of the defendant.” United States v. Price, 773 F.2d 1256, 1527 (11^th Cir. 1985).

         Throughout the course of these proceedings, the United States argued that the defendant should be detained because she was likely to flee to avoid deportation.^[2](Doc. 18 at 3, 4, 6, 7, & 8). The burden of persuading the Court that the defendant is a flight risk rests with the government. United States v. Hurtado, 779 F.2d 1467, 1478 (11^th Cir. 1985). After a detention hearing, the Magistrate Judge determined that the defendant was not a flight risk. This Court conducted an independent de novo review of the Magistrate Judge's determination, and agreed with the finding that the government had failed to meet its burden of demonstrating that the defendant was a flight risk. See United States v. King, 849 F.2d 485 (11^th Cir. 1988).

         The government relied primarily, if not solely, on the defendant's risk of flight as the reason why no condition of release could reasonably assure her appearance at trial. In its appeal, the government presented the Court no new evidence that would alter the finding that the defendant did not present a risk of flight.^[3] It was undisputed that the defendant has significant ties to the community. She is married and has three children in this district. In the almost twenty years since she came to the United States, the defendant has not returned to Mexico or otherwise left this country. Under the specific facts of this case, the Court concluded that the mere fact that Ochoa may be here illegally in and of itself was insufficient to conclude that she was a risk of flight.

         Relying heavily on the ICE detainer, the United States also argued that there was “no condition or combination of conditions” that would “reasonably assure” the defendant's appearance at trial because once ICE took custody of the defendant, ICE would deport her, and deprive the government of the opportunity to prosecute her. The Court finds that the government's position is disingenuous in light of the fact that as soon as ICE executed its detainer in September, the United States began the process of securing the defendant's presence for trial. Shortly after ICE obtained custody of the defendant from the United States Marshal, on September 17, 2018, the Assistant United States Attorney executed a form to secure her presence.^[4] Thus, it is clear to the Court that the government intended to have the defendant present for trial.

         The United States further argued that because it could not ensure that the defendant would be present at trial due to the administrative deportation proceedings initiated by ICE, the defendant should be held pursuant to the “risk of non-appearance” clause of the Bail Reform Act. The Court disagrees. The “risk of non-appearance” “must involve an element of violation.” United States v. Santos-Flores, 794 F.3d 1088');">794 F.3d 1088, 1092 (9^th Cir. 2015). Any risk of non-appearance in this case was created by the United States and its executive arms, not by the defendant.

         More importantly, the Bail Reform Act does not create a rebuttable presumption that removable aliens should be ...