UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

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UNITED STATES OF AMERICA )
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v. ) Criminal Case No. 18-275
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JAIME OMAR VASQUEZ-BENITEZ, )
Defendant. )
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OPINION & ORDER

Pending before the Court is defendant’s motion [19], which the Court construes as a
motion to compel compliance with Judge Harvey’s order [7] setting conditions for defendant’s
supervised release. The motion tasks the Court with striking the proper balance between the
Judiciary’s power to order pretrial release of a person charged with illegal reentry under the Bail
Reform Act, 18 U.S.C. § 3142, and the govemment’s concurrent ability to detain that person to
effectuate his removal under the Immigration & Nationality Act, 8 U.S.C. § 1231. After
considering the Bail Reform Act"s structure and reasoning from first principles, the Court holds
that because the government has chosen to bring criminal charges against defendant, a judicial
order under the Bail Reform Act provides the sole avenue for detaining defendant while the

charges are pending.

With the Court’s exclusive power comes the responsibility to assure defendant’s
appearance in court and the safety of the community. See § 3142(0). A new indictment and new
evidence requires the Court to determine whether circumstances have sufficiently changed to

justify detaining defendant under the Bail Reform Act. To facilitate the Court’s reconsideration

of defendant’s supervised release, the Court orders defendant to appear forthwith for further

detention proceedings.
I. Factual Background

A month into defendant’s civil removal proceedings, the government filed a criminal
complaint charging defendant with illegally reentering the United States in violation of 8 U.S.C.
§ 1326. Customs officials transferred custody of defendant to the U.S. Marshals Service for a
detention hearing before Judge Harvey, who released defendant pending trial. When Acting
Chief Judge Boasberg denied the government’s request to revoke release, the Marshals
transferred defendant back to customs officials for continued removal proceedings Several days
later, defendant filed this motion, which the Court construes as a motion to compel compliance

with Judge Harvey’s order for supervised release.

The case was randomly reassigned to this Court after the grand jury returned an
indictment. At arraignment, the government urged the Court to revisit defendant’s detention
status in light of the indictment and new factual evidence. The Court deferred reconsidering

defendant’s detention status until resolution of this motion.
II. Discussion

Defendant’s motion asks the Court to referee the incongruity between his current civil
detention under the Immigration & Nationality Act (INA) and this Court’s prior order under the
Bail Reform Act (BM) releasing him pending his criminal trial. In Section II.A of its opinion,
the Court concludes the BRA must control the custody of a defendant charged with illegal
reentry, regardless of the government’s civil authority to hold him under the INA. But having

resolved that tension, the Court is mindful of the need to properly wield its control. In Section

II.B, considering the defendant’s newly returned indictment and the government’s recently
discovered evidence, the Court decides to accept the BRA’s invitation to reopen defendant’s

detention hearing in light of changed circumstances

A. Due to the pending criminal prosecution against the defendant, the BRA
must control the terms of his confinement

To equipoise the Judiciary’s power under the BRA with the Executive’s authority under
the INA, this Section engages with the BRA and our Constitution’s text, structure, and history.
Both routes lead to the same conclusion: the BRA provides the exclusive means of detaining a

defendant criminally charged with illegal reentry.

1. The BRA’s specific treatment of removable aliens criminally
charged with illegal entry supersedes the INA’s general mandate
to detain removable aliens.

Defendant asks this Court to untangle the collision between civil detention of removable
aliens under the INA and pretrial release of illegal reentry defendants under the BRA. By
contrast, the government presents the INA and BRA as parallel proceedings in which the
government can simultaneously detain a removable alien in one while litigating that alien’s
detention in the other. But unfortunately for the government, the BRA itself acknowledges the

potential for the two paths to intersect.

The Supreme Court’s statutory interpretation cases establish “that a precisely drawn,
detailed statute pre-empts more general remedies,” even where both “literally appl[y].” Brown v.
Gen. Servs. Admin., 425 U.S. 820, 834 (l976). This principle applies with added force when the
more specific statutory Scheme is also more recent. Cf. Credit Suisse Sec. (USA) LLC v. Billz'ng,

551 U.S. 264, 275 (2007). And when the more recent, more specific statutory scheme provides

relief where none existed before, courts generally regard the new relief as exclusive. Hink v.

United States, 550 U.S. 501, 506 (2007).

Prior to the initial version of the BRA passed in 1966, courts made pretrial detention
decisions through a “dismal” system trading “freedom for money.” Patricia M. Wald & Daniel J.
Freed, T he Bail Reform Act 0f1966.' A Practitioner ’s Primer, 52 A.B.A. J. 94(), 940 (1966). By
enacting the BRA, as amended in 1984, Congress'offered noncapital defendants a statutory right
to be released on personal recognizance or unsecured bond absent a judicial determination “that
such release will not reasonably assure the appearance of the person as required or will endanger

the safety of any other person or the community.” § 3142(b).

And though the INA had given the Executive general authority to detain removable aliens
since 1952, the BRA specifically empowered courts to detain removable aliens criminally
charged with illegal reentry. Section 3142(d) allows courts to detain defendants charged with
illegal reentry for ten days while the government determines whether to pursue criminal sanction
or civil removal_but not both. If the government declines to initiate civil removal proceedings
within ten days, § 3142(d) requires the court to proceed with the alien’s criminal prosecution “in
accordance with the other provisions” of the BRA, “notwithstanding the applicability of other

provisions of law governing . . . deportation.”

The BRA’s Specific provision for detaining removable aliens charged with illegal reentry
must thus trump the INA’s general authority to detain removable aliens. Section 3142 of the
BRA operates with greater precision and detail than § 1231 of the INA, it is more recent, and its
remedy is exclusive. The BRA controls the detention of a removable alien charged with illegal

reentry.

2. The Judiciary must control criminal defendant’s custody to
effectively oversee his pending criminal prosecution.

Giving the BRA exclusive authority over a criminal defendant’s pretrial detention is not
only faithful to the Supreme Court’s statutory interpretation caselaw_it is required by our
system of criminal justice. Reasoning from first principles, and heeding the Court of Appeals’s
“counsel against interpreting statutes . . . in a manner that would impinge” on each branch’s
“constitutionally rooted primacy,” United States v. Fokker Servs. B. V., 818 F.3d 733, 737 (D.C.
Cir. 2016), the Court concludes the government’s invocation of concurrent and independent
detention authority under the INA runs counter to our Constitution’s text, structure, and history.
Courts must be able to supplant the government’s detention authority under the INA in order to

effectively administer criminal justice.

The criminal procedure contemplated by our constitutional structure firmly situates the
balance of discretion pre- and post-trial in the Executive. “Whether to prosecute and what charge
to file or bring before a grand jury are decisions that generally rest in the prosecutor’s
discretion.” United States v. Batchela'er, 442 U.S. 114, 124 (1979); e.g., U.S. Const. art. lI, §§ 2-
3; see also Fokker Servs. B. V., 818 F.3d at 737 (“The Constitution allocates primacy in criminal
charging decisions to the Executive Branch.”). Similarly, decisions to dismiss charges lay “at the
core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-
Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). What is more, after a sentence is
imposed, the Executive may “grant Reprieves and Pardons.” U.S. Const. art II, § 2, cl. 1.
“[J]udicial authority is . . . at its most limited” when reviewing this discretionary role in the

criminal process. ley. for Creative Non- Violence, 786 F.2d at 1201.

But what the Judiciary lacks in initial discretion it makes up for in ultimate authority
while charges are pending. See Offutt v. United States, 348 U.S. 11, 13 (1954) (recognizing the
Judiciary’s “supervisory authority over the administration of criminal justice in the federal
courts” under the Constitution). Absent rebellion or invasion, the Constitution vests final say
over ongoing civil and criminal detention in the Judiciary. See, e.g., U.S. Const. art. II, § 9, cl. 2;
Art. III. Having made the decision to bring criminal charges, the Executive cedes control over
the defendant to the court. If it comes to regret that choice, the Executive may regain control
before sentencing by reversing its decision to charge the defendant, or after sentencing through
the pardon power. But so long as criminal charges remain pending, the Executive no longer has

the final word.

Remedies available at the F|ounding reinforce judicial primacy in situations like
defendant’s. In 1787, removable aliens detained by the Executive for violating naturalization
laws could judicially challenge their detention as an erroneous application or interpretation of the
immigration statutes. I.N.S. v. St. Cyr, 539 U.S. 289, 301-05 (2001) (collecting cases). Judicial
supremacy over the detention of an individual charged with illegal reentry is thus perfectly

consistent with the Framers’ original intent.

Modern constraints dictate the same result. Take the Speedy Trial Act, 18 U.S.C. §§
3161~3174, which requires courts to comply with strict time limits governing a criminal
prosecution. How can a court comply with mandatory time limits if unable to compel a
defendant’s appearance? The BRA empowers district courts to abide by the Speedy Trial Act by
holding a defendant pretrial, or by releasing a defendant with the power to revoke release if the
defendant refuses to appear. But if the executive branch has independent authority to hold a

criminal defendant, the court must resort to a writ of habeas corpus aa' prosequendum in order to

comply with the Speedy Trial Act. Indeed, the Court did so here, merely to secure defendant’s
appearance at a pretrial hearing. Cf. Crawfora1 v. Jackson, 589 F.2d 693, 696 (D.C. Cir. 1978)
(“When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he is
considered to be ‘on loan’ to the [receiving] authorities so that the [sender’s] jurisdiction over the
accused continues uninterruptedly.”). And even that writ would be powerless to resolve a

situation where the Executive refuses to comply.

Accepting the government’s independent authority to hold a criminal defendant would
spin our constitutional order in circles. That cannot be the law. The Executive may not skirt this
Court’s decision setting the terms of defendant’s release under the BRA any more than it could

disregard a hypothetical court’s order to turn the defendant over for speedy trial.

Jurists since Coke have upheld as sacrosanct the great maxim nemo potest esse simal
actor et iudex: no one can be both litigant and judge at the same time. The Framers safeguarded
this legal norm by ensuring that the Judiciary’s ability to oversee detention supplants the
Executive’s concurrent authority to detain the defendant civilly. And Congress incorporated it
into the BRA’s text by cabining the government’s ability to detain removable aliens once they
are charged with illegal reentry. Taking account of both the constitutional rule and the statutory
text, this Court holds that because of defendant’s pending criminal prosecution for illegal
reentry, the government cannot simultaneously hold him civilly to effectuate his removal. For

defendants charged with illegal reentry, the BRA_not the INA-dictates their detention status.

In announcing this rule, the Court also points out some limits. For one, this holding does

not divest the government’s authority to effectuate defendant’s removal while criminal charges

are pending. The government can continue to adjudicate defendant’s civil immigration status,
and_if it drops the criminal charges first_it can remove him the instant that remedy becomes
available under the INA. The government just cannot hold him under the INA while criminal

charges for illegal reentry are pending.

Nor must the government be content letting the defendant out on supervised release. The
government can forgo criminal prosecution and revert to detaining the defendant under the INA.
But so long as the government invokes the jurisdiction of a federal court, the government must

consent to the Court’s custodial dominion over the criminal defendants appearing before it.

Indeed, the long-run effect of this legal rule might be that the government will stop
bringing criminal prosecutions for illegal reentry, and instead exclusively pursue removal
proceedings That may leave would-be defendants worse-off, languishing without speedy trial
rights-and without the possibility of credit for time served-in ICE detention centers farther
away from their families, friends, and counsel. Nevertheless, the government can do that under
the INA. But by independently detaining the defendant while simultaneously pursuing criminal
prosecution, the Executive flouts Congress’s judgment and stymies the Judiciary’s ability to
administer justice. Because the government has chosen to pursue criminal charges against this
defendant before this Court, this Court’s authority to set him free under the BRA supplants the

government’s ability to detain him under the INA.

B. The Court orders the defendant to appear for consideration of whether
he should be held under the BRA in light of the indictment and new
evidence.

Having vindicated its authority to control the defendant’s custody, the Court now

exercises it. The BRA authorizes district courts to reopen detention hearings “when previously

nonexistent, material information [i]s brought to light.” United States v. Peralta, 849 F.2d 625,

626-27 (D.C. cir. 1988); accord 18 U.s.C. § 3142(1)(2).

Since defendant’s last detention hearing, the grand jury returned a criminal indictment
and the government obtained new evidence about the factual circumstances underpinning
defendant’s outstanding arrest warrant in El Salvador. This information “has a material bearing”
on “whether there are conditions of release that will reasonably assure” not only defendant’s
appearance in court, but also “the safety of . . . the community.” § 3142(f)(2). The Court thus
finds it necessary to revisit defendant’s supervised release conditions considering these changed

circumstances
III. Conclusion

The Court GRANTS defendant’s motion [18] in so far as it compels compliance with
Judge Harvey’s order [7] setting the conditions for defendant’s supervised release and ORDERS
the government to release defendant in accordance with that order. The Court also ORDERS the
defendant to appear forthwith for a detention hearing in light of the new indictment and

evidence.

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RoY E c. LAMBERTH Date

United States District Court

 

