United States District Court, M.D. Alabama, Northern Division
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
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.
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
(10th 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. 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 (11th Cir. 1985).
the course of these proceedings, the United States argued
that the defendant should be detained because she was likely
to flee to avoid deportation.(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 (11th 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 (11th
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. 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.
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. Thus, it is clear to the Court that the
government intended to have the defendant present for trial.
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
(9th Cir. 2015). Any risk of non-appearance in
this case was created by the United States and its executive
arms, not by the defendant.
importantly, the Bail Reform Act does not create a rebuttable
presumption that removable aliens should be ...