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United States v. Dominguez-Portillo

United States District Court, W.D. Texas, El Paso Division

January 5, 2018

UNITED STATES OF AMERICA
v.
ELBA LUZ DOMINGUEZ-PORTILLO MAYNOR ALONSO CLAUDINO LOPEZ JOSE FRANCIS YANES-MANCIA NATIVIDAD ZAVALA-ZAVALA BLANCA NIEVE VASQUEZ-HERNANDEZ

          OPINION

          MIGUEL A. TORRES, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendants' Motion to Dismiss (ECF No. 13)[1] filed by Defendants on November 7, 2017, in the above-styled and numbered cases. On November 20, 2017, the Government filed its Response in Opposition to Defendants' Motion to Dismiss ("Response") and the Court's November 2, 2017 Order (ECF No. 17).[2] The Court held an evidentiary hearing regarding the present motion to dismiss on November 27, 2017. Upon consideration of the motion, Response, and oral argument, the Court DENIES Defendants' Motion to Dismiss (ECF No. 13).

         I. FACTS & PROCEDURAL HISTORY

         These five cases, which have been consolidated solely for the purpose of the present motion to dismiss, [3] all involve allegations that each of the Defendants illegally crossed the border with a juvenile who they allege is their child or, in the case of Defendant Natividad Zavala-Zavala, grandchild.[4] Defendants were arrested and charged with the petty misdemeanor offense of improper entry by an alien pursuant to 8 U.S.C. § 1325(a)(1).[5] (ECF No. 6). The juveniles accompanying Defendants were separated from Defendants, processed as unaccompanied minors, and transferred to the custody of the Office of Refugee Resettlement ("ORR"). (Res., ECF No. 17, at 3); see 6 U.S.C. § 279(g)(2); see also 8 U.S.C. § 1232(b)(3).

         Defendant Elba Luz Dominguez-Portillo ("Dominguez-Portillo"), who is a citizen of El Salvador, and a juvenile were apprehended on October 21, 2017, by United States Customs and Border Protection ("Border Patrol") while walking on levee road north of the Rio Grande River, approximately 3.89 miles east of the Bridge of the Americas Port of Entry ("Bridge of the Americas"). (3:17-mj-4409-MAT, Compl., ECF No. 6, at 2). During her initial appearance on October 23, 2017, Dominguez-Portillo informed the Court that the juvenile was her sixteen year-old daughter and stated that since the time of their arrest Dominguez-Portillo had not received any paperwork or information concerning the whereabouts or well-being of her minor child. (3:17-mj-4409-MAT, Initial App. Tr., ECF No. 14, at 9).

         Defendant Maynor Alonso Claudino Lopez ("Claudino"), who is a citizen of Honduras, and a juvenile were apprehended on October 23, 2017, by Border Patrol while walking eastbound on the north Rio Grande River levee road, approximately 4.6 miles east of the Bridge of the Americas. (3:17-mj-4456-MAT, Compl., ECF No. 6, at 2). During his initial appearance on October 24, 2017, Claudino informed the Court that the juvenile was his eleven year-old son. (3:17-mj-4456-MAT, Initial App. Tr., ECF No. 15, at 12). Claudino stated that since the time of their arrest he had not received any information concerning the whereabouts or well-being of his minor child other than being informed by U.S. authorities that his son would be with other children.[6] Id.

         Defendant Jose Francis Yanes-Mancia ("Yanes-Mancia"), who is a citizen of Honduras, and a juvenile[7] were apprehended on October 22, 2017, by Border Patrol while walking north across the Rio Grande River, approximately 1.46 miles west of the Paso Del Norte Port of Entry ("Paso Del Norte"). (3:17-mj-4461-MAT, Compl., ECF No. 6, at 2). During his initial appearance on October 24, 2017, Yanes-Mancia informed the Court that the juvenile was his fifteen year-old son. (3:17-mj-4461-MAT, Initial App. Tr., ECF No. 14, at 11). Yanes-Mancia stated that since the time of their arrest he had not received any paperwork or information concerning the whereabouts or well-being of his minor child, other than being told that his son would be taken to an institution for children.[8] Id.

         Defendant Natividad Zavala-Zavala ("Zavala-Zavala"), who is a citizen of Honduras, and a juvenile[9] were apprehended on October 22, 2017, by Border Patrol while crossing the Rio Grande River approximately 1.46 miles west of the Paso Del Norte. (3:17-mj-4462-MAT, Compl., ECF No. 6, at 2). During her initial appearance on October 24, 2017, Zavala-Zavala informed the Court that the juvenile was her seven year-old grandson. (3:17-mj-4462-MAT, Initial App. Tr., ECF No. 14, at 10). Zavala-Zavala stated that she received a piece of paper at the time of her arrest, though she had no idea what it says, and that she had been provided with no further information regarding the whereabouts and well-being of her minor grandson. Id. at 10-11.

         Defendant Blanca Nieve Vasquez-Hernandez ("Vasquez-Hernandez"), who is a citizen of El Salvador, and a juvenile were apprehended on October 23, 2017, by Border Patrol while walking on the American levee, approximately 1 mile east of the Ysleta Port of Entry. (3:17-mj-4499-MAT, Compl., ECF No. 6, at 2). During her initial appearance on October 26, 2017, Vasquez-Hernandez informed the Court that the juvenile was her thirteen year-old son. (3:17-mj-4499-MAT, Initial App. Tr., ECF No. 14, at 7). Vasquez-Hernandez stated she did not receive any documents relating to her son subsequent to their arrest. Id. at 8. She was only told that he would be sent to a camp and that she would learn more information later, though at the time of the initial appearance she had not learned anything further. Id. at 7-8.

         In a number of recent petty misdemeanor illegal entry cases before this Court over the last several months, the Court has repeatedly been apprised of concerns voiced by defense counsel and by defendants (primarily from Central American nations). The defendants, who claim to be parents of children they were separated from at the time of their arrest, reported to the Court limited and often non-existent lack of information about the well-being and whereabouts of their minor children. Because of the Court's concerns regarding the possible legal impact of these issues on the criminal proceedings of Defendants, the Court ordered briefing to address these novel legal issues.

         On November 1, 2017, the Court held a status conference to inform the parties that it was requesting briefing on issues related to their minor relatives. At the hearing, counsel for Defendants informed the Court that he anticipated filing a dispositive motion requesting relief that would address the issues concerning the Court. The Court issued its briefing order (ECF No. 3) the following day, and on November 7, 2017, Defendants filed their Motion to Dismiss. (ECF No. 13). Significantly, neither party presented any witnesses nor evidence during the evidentiary hearing held on November 27, 2017. After allowing for oral arguments by the parties at the evidentiary hearing, the Court denied Defendants' pending motion to dismiss and informed them a written opinion would be forthcoming.

         II. LAW & ANALYSIS

         A. Summary of the Parties' Arguments

         Defendants argue that their "separation from their minor children during the children's immigration proceedings, and the premature § 1325 charges against them, constitutes a violation of the Flores Settlement and, most importantly, a violation of the Due Process Clause with respect to the criminal complaints."[10] (Mot. To Dismiss, ECF No. 13, at 2). They further argue that the separation from the minor children is a form of compulsion that renders their guilty pleas involuntary. Defendants emphasize that they are not asking the Court to analyze the strength of the Government's § 1325 cases against them. Finally, Defendants allege that the Government's actions is in all these regards constitutes outrageous government conduct. As a remedy for these alleged violations, Defendants seek: (1) an expeditious reunion with their minor children pending the resolution of the children's immigration proceedings; and (2) the dismissal of the allegedly premature § 1325 complaints against them.

         The Government responds that it has properly charged Defendants with criminal offenses, that the Court has jurisdiction over these offenses, and that Defendants have not raised a legitimate basis for dismissal of these valid charges. They further argue that the Flores Settlement has no applicability to criminal cases, and that Defendants have failed to establish any Due Process violation.[11] The Government asserts that there has been no coercion, and in fact no guilty pleas have even been entered. Further, the Government argues that even if coercion were proven, the remedy would not be to dismiss the charges, but rather to go to trial. Underpinning these arguments is the Government's assertion that it is not required by law to provide any information regarding the well-being and whereabouts of the minor children of the defendant-parents while the parents' criminal cases are pending.

         B. The Government's Criminal Jurisdiction in These Cases

         Title 18 U.S.C. § 3231 provides that the "district courts of the United States shall have original jurisdiction, . . . of all offenses against the laws of the United States." 18 U.S.C. § 3231. Improper entry by means of an improper time or place is a petty misdemeanor federal offense that requires the Government to prove that the defendant: (1) was an alien; (2) who entered or attempted to enter the United States; and (3) entered or attempted to enter at a time or place other than as designated by immigration officers. 8 U.S.C. § 1325(a)(1). The Government must also establish that venue is proper in the Western District of Texas. See Fed. R. Crim. P. 18.

         Federal Rule of Criminal Procedure 12 provides that a "party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). A party may argue that a court lacks jurisdiction at any time. Id. 12(b)(2). However, the following defenses, objections, and requests must be raised in a pretrial motion if the basis for the motion is then reasonably available and can be determined without a trial on the merits:

A. a defect in instituting the prosecution, including:
i. improper venue;
ii. preindictment delay;
iii. a violation of the constitutional right to a speedy trial;
iv. selective or vindictive prosecution; and
v. an error in the grand-jury proceeding or preliminary hearing;
B. a defect in the indictment or information, including:
i. joining two or more offenses in the same count (duplicity);
ii. charging the same offense in more than one count (multiplicity);
iii. lack of specificity;
iv. improper joinder; and
v. failure to state an offense;
C. suppression of evidence;
D. severance of charges or defendants under Rule 14; and
E. discovery under Rule 16

Id. 12(b)(3). The phrase "including" in Rule 12(b)(3)(A-B) suggests this list is not exhaustive. Defendants do not specifically assert any of the above defenses, objections, or requests and, if anything, acknowledge that the criminal complaints are properly before the Court and sufficiently plead by emphasizing that they are not asking the Court to analyze the strength of the Government's § 1325 cases against them.

         C. The Outrageous Government Conduct Doctrine

         Defendants argue that dismissal is warranted based on outrageous conduct by the Government. The Supreme Court discussed the outrageous government conduct doctrine in United States v. Russell, 411 U.S. 423 (1973), and later in Hampton v. United States, 425 U.S. 484 (1976). In Russell, the Government conduct challenged as outrageous involved a law enforcement official who provided a legally obtainable chemical that was a necessary component to a criminal drug manufacturing enterprise. 411 U.S. at 431-32. The Supreme Court held that a criminal prosecution could nonetheless proceed. Id. at 436. While finding the conduct not sufficiently outrageous to warrant dismissal it stated that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Id. at 4.31-32; see also Hampton, 425 U.S. at 488-91 (restating Russell dictum). While it appears the doctrine is generally considered in the context of entrapment by law enforcement officials, United States v. Mouton, No. 11-48, 2013 WL 3187265, at *3 (E.D. La. June 20, 2013), it has been analyzed in contexts not involving entrapment. See, e.g., United States v. Chavez-Betancourt, 447 Fed.Appx. 553, 557 (5th Cir. 2011) (analyzing the application of the outrageous government conduct doctrine in a case alleging forgery of a chain of custody receipt by a government official).

         "The limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the Defendant." Hampton, 425 U.S. at 490. Even then, Government conduct does not warrant dismissal of criminal charges "unless it is so outrageous that it violates the principle of fundamental fairness under the due process clause of the Fifth Amendment." United States v. Posada Carriles, 541 F.3d 344, 353 (5th Cir. 2008) (quoting United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997)) (internal quotation marks omitted). "However, a due process violation will be found only in the rarest and most outrageous circumstances." United States v. Nissen, 928 F.2d 690, 693 (5th Cir. 1991) (citation omitted). The Government's conduct must "shock the most cynical among us." United States v. Rodriguez, 603 Fed.Appx. 306, 312 (5th Cir. 2015) (citation omitted). "Thus, a defendant who asserts the defense of outrageous government conduct has an extremely high burden of proof." Asibor, 109 F.3d at 1039.

         The circumstances warranting the application of the outrageous government conduct doctrine are not generally well-defined by case law. Courts have noted that there appears to be only one circuit court case, United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), [12] in which a conviction has been invalidated on Russell-Hampton grounds. See United States v. Collins, 972 F.2d 1385, 1396 n. 10 (5th Cir. 1992); see also United States v. Valdez, No. 6:06-60074-07, 2011 WL 7143468, at *50 n. 28 (W.D. La. Dec. 30, 2011), report and recommendation adopted, No. 06-60074, 2012 WL 359726 (W.D. La. Jan. 31, 2012). At least one court also questions the continuing validity of the Russell-Hampton doctrine. See Valdez, 2011 WL 7143468, at *50 n. 28 (collecting cases). The outrageous government conduct doctrine as articulated in these two Supreme Court cases nevertheless remains a recognized doctrine. Significantly, and decisively for the relief sought by Defendants in the instant motion, dismissal on such grounds is an extremely high hurdle which has yet to be reached in any reported Fifth Circuit case.

         Thus, the Court must determine whether the Government has violated a protected right of Defendants and, if it has, whether that violation was sufficiently outrageous to warrant a dismissal of the charges, as sought by Defendants.

         D. Parental Rights ...


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