United States v. Ailon-Ailon

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 22, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3178
MARIO AILON-AILON,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:17-CR-10104-EFM-1)
_________________________________
Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public
Defender, and Jennifer A. Amyx, Assistant Federal Public Defender, with counsel on the
briefs), Kansas Federal Public Defender’s Office, Topeka, Kansas, for
Defendant-Appellant.
Brent I. Anderson, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, with counsel on the brief), United States Attorney’s Office, District of Kansas,
Wichita, Kansas, for Plaintiff-Appellee.
_________________________________
Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________
PER CURIAM.
_________________________________
We expedited consideration of this bail appeal to consider Mario Ailon-
Ailon’s argument that the government has misinterpreted the word “flee” as it
appears in 18 U.S.C. § 3142(f)(2), resulting in his illegal pre-trial detention. He
argues that involuntary removal by the Bureau of Immigration and Customs
Enforcement (“ICE”) does not constitute flight of the sort that would justify
detention. On initial consideration, a magistrate judge agreed and determined that
Ailon-Ailon should not be detained before trial. On review of the magistrate judge,
the district court reversed, ordering that he be detained. We conclude that the plain
meaning of “flee” refers to a volitional act rather than involuntary removal, and that
the structure of the Bail Reform Act supports this plain-text reading. Exercising
jurisdiction under 18 U.S.C. § 3145(c), we reverse and remand for further
proceedings.
I
Ailon-Ailon, a citizen of Guatemala, has lived in Dodge City, Kansas, for at
least seven years. In July 2017, he was arrested by ICE agents, who determined that
he had reentered the United States illegally after he was ordered removed in 2001.
Rather than immediately removing him again, ICE referred the matter for criminal
prosecution. Ailon-Ailon was charged with one count of illegal reentry in violation
of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). He is subject to a reinstated
removal order, and ICE has lodged a detainer with the United States Marshals
Service, requesting custody of Ailon-Ailon if he is released from the Marshals’
custody.
The government moved to detain Ailon-Ailon prior to trial on the ground that,
if he was released, he would be removed from the country by ICE before trial. It
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argued that because he is subject to a reinstated order of removal, ICE would be
obligated to remove him within ninety days. He would therefore not be present for
trial. A magistrate judge denied the government’s motion, concluding that Ailon-
Ailon was not a flight risk because “the risk of flight that the [Bail Reform Act] is
concerned with is not a flight paid for by the U.S. Government, and if the
Government can’t decide whether to keep him and prosecute him or deport him,
that’s on them.” The magistrate judge ordered that Ailon-Ailon be released subject
to a ten-thousand dollar bond and certain conditions.
On appeal of the magistrate’s decision to the district court, the government
reasserted its definition of “flee.” By written order, the district court reversed, but
specifically concluded in doing so that Ailon-Ailon was not a voluntary flight risk,
and acknowledged that “[a]s a policy matter, . . . if the United States government,
through the Department of Justice, wanted [Ailon-Ailon] present for prosecution, it
should not . . . complain [about his] non-appearance due solely to the actions of the
United States government, through the Department of Homeland Security.”
However, the district court found by a preponderance of the evidence that ICE would
remove him before trial and that such removal qualified as flight. It ordered that
Ailon-Ailon be detained. This appeal followed.
II
“In our society liberty is the norm, and detention prior to trial or without trial
is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755
(1987). The Bail Reform Act sets forth one such exception. Under that Act,
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individuals charged with a crime are generally “released on personal recognizance or
upon execution of an unsecured appearance bond,” 18 U.S.C. § 3142(a)(1), or they
may be “released on a condition or combination of conditions” that will reasonably
ensure their appearance in court and the safety of the community. § 3142(a)(2),
(c)(1).
The Act establishes a two-step process for detaining an individual before trial.
§ 3142(f). First, the government may move for pre-trial detention if the defendant
has been charged with certain enumerated offenses or “in a case that involves . . . a
serious risk that such person will flee; or . . . a serious risk that such person will
obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to
threaten, injure, or intimidate, a prospective witness or juror.” Id. If the court
determines that there is such a risk, the government must prove at the second step of
the process that there “is no condition or combination of conditions” that “will
reasonably assure the [defendant’s] appearance . . . as required [as well as] the safety
of any other person and the community.” Id. The district court is directed to
consider various factors in making this determination, including “the nature and
circumstances of the offense charged,” “the weight of the evidence against the
person,” “the history and characteristics of the person,” and “the nature and
seriousness of the danger to any person or the community that would be posed by the
person’s release.” § 3142(g).
In this case, the government did not allege that Ailon-Ailon represented a
danger to the community; it relied solely on the risk that Ailon-Ailon would flee in
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urging pre-trial detention. The government bears the burden of proving a defendant
is a flight risk by a preponderance of the evidence. United States v. Cisneros, 328
F.3d 610, 616 (10th Cir. 2003). “We apply de novo review to mixed questions of law
and fact concerning the detention or release decision, but we accept the district
court’s findings of historical fact which support that decision unless they are clearly
erroneous.” Id. at 613.
III
Ailon-Ailon argues that the word “flee” as it appears in § 3142(f)(2) does not
encompass involuntary removal. He contends the risk that he would be removed
from the United States by ICE does not constitute a risk that he will flee prior to trial.
This is an issue of first impression in this circuit.1
District courts considering this argument have reached varying conclusions.
Compare United States v. Ong, 762 F. Supp. 2d 1353, 1363 (N.D. Ga. 2010) (denying
pre-trial release on the ground that “there is a great likelihood that [the defendant]
will be deported from the United States [pursuant to an ICE detainer and order of
removal] prior to the conclusion of any criminal proceedings against him”), and
United States v. Pantaleon-Paez, No. 07-292, 2008 WL 313785, at *4 (D. Idaho Feb.
1, 2008) (unpublished) (“In light of [ ]ICE’s imminent detention and subsequent
1
The district court relied on United States v. Vasquez, 413 F. App’x 42 (10th
Cir. 2011) (unpublished), an Order and Judgment concerning a detainer and
reinstated order of removal in the context of 18 U.S.C. § 3143, which governs release
pending sentencing or appeal. Although it is understandable that the district court
applied Vasquez, it contains no analysis of involuntary removal as flight. Indeed,
there is only a passing reference to the issue.
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deportation efforts in the event of Defendant’s release, it cannot be said that there is
any condition or combination of conditions that will assure his appearance at trial.”),
with United States v. Barrera-Omana, 638 F. Supp. 2d 1108, 1111 (D. Minn. 2009)
(“The risk of nonappearance referenced in . . . § 3142 has to involve an element of
volition.”), and United States v. Montoya-Vasquez, No. 4:08-cr-3174, 2009 WL
103596, at *5 (D. Neb. Jan. 13, 2009) (unpublished) (stating that § 3142 requires a
finding that the defendant “would fail to appear by virtue of his own volition, actions
and will”). In a slightly different context, the Ninth Circuit has suggested that “flee”
as used in § 3142 involves an element of volition. See United States v. Santos-
Flores, 794 F.3d 1088, 1091 (9th Cir. 2015) (“As a number of district courts have
persuasively explained, the risk of nonappearance referenced in . . . § 3142 must
involve an element of volition.”).
We agree with the latter set of courts that a risk of involuntary removal does
not establish a “serious risk that [the defendant] will flee” upon which pre-trial
detention may be based. § 3142(f)(2)(A). Having failed to make the threshold
showing required by § 3142(f), the government’s detention motion fails at the first
step of our analysis.
In interpreting a statute, “we look initially to the plain language of the
provision at issue. If the words of the statute have a plain and ordinary meaning, we
apply the text as written.” Fruitt v. Astrue, 604 F.3d 1217, 1220 (10th Cir. 2010)
(quotation, citation, and alteration omitted). The ordinary meaning of “flee” suggests
volitional conduct. For example, Black’s Law Dictionary (10th ed. 2014) defines
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“flee” as: “To run away; to hasten off . . . To run away or escape from danger,
pursuit, or unpleasantness; to try to evade a problem . . . To vanish; to cease to be
visible . . . To abandon or forsake.” Webster’s Third New International Dictionary
(1976) defines “flee” as “to run away from.” As Ailon-Ailon noted at oral argument,
one would not describe an individual who has been arrested at a crime scene and
involuntarily transported to a police station as having fled the scene.
The structure of the Bail Reform Act supports this plain-language
interpretation. See Homeland Stores, Inc. v. Resolution Tr. Corp., 17 F.3d 1269,
1273 (10th Cir. 1994) (“In interpreting a statutory provision, context and structure
are, as in examining any legal instrument, of substantial import in the interpretive
exercise.” (quotation omitted)). “Congress chose not to exclude removable aliens
from consideration for release or detention in criminal proceedings,” but instead set
forth “specific procedures to be followed when a judicial officer determines that a
defendant is not a citizen of the United States or lawfully admitted for permanent
residence.” Santos-Flores, 794 F.3d at 1090-91. The Act provides that a removable
alien may be temporarily detained for up to ten days to permit ICE to take custody.
§ 3142(d)(2).2 If ICE declines to do so, such “person shall be treated in accordance
with the other provisions of this section, notwithstanding the applicability of other
provisions of law governing release pending trial or deportation or exclusion
2
Because Ailon-Ailon was initially arrested by ICE, it does not appear that the
notice provision of subsection (d) applies to this case. Nothing in this opinion should
be read to suggest that ICE’s detainer is somehow invalid or unenforceable because
the subsection (d) process was not pursued.
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proceedings.” Id. This provision demonstrates that a defendant “is not barred from
release because he is a deportable alien.” United States v. Adomako, 150 F. Supp. 2d
1302, 1307 (M.D. Fla. 2001); see also United States v. Brown, No. 4-15-cr-102, 2017
WL 3310689, at *4 (D.N.D. July 31, 2017) (unpublished) (because “Congress
affirmatively extended to alien persons the same protections it affords citizens under
the Act, . . . the court would violate the Bail Reform Act if it detained defendant
based only on the fact he is an alien and ICE has filed a detainer”); United States v.
Stepanyan, No. 3:15-CR-00234-CRB, 2015 WL 4498572, at *2 (N.D. Cal. July 23,
2015) (unpublished) (noting the government’s argument that a defendant’s “status as
a deportable alien itself bars him from release is incompatible with the clear
directives of § 3142(d)”).
Further, although Congress established a rebuttable presumption that certain
defendants should be detained, it did not include removable aliens on that list. See
§ 3142(e)(3). The Bail Reform Act directs courts to consider a number of factors and
make pre-trial detention decisions as to removable aliens “on a case-by-case basis.”
Barrera-Omana, 638 F. Supp. 2d at 1111 (quotation omitted). Yet under the
government’s construction, the Act’s “carefully crafted detention plan . . . would
simply be overruled by an ICE detainer,” precluding “any kind of individualized
consideration of a person before the Court.” Id.Finally, the Bail Reform Act provides an affirmative defense to prosecution
for failure to appear if “uncontrollable circumstances prevented the person from
appearing or surrendering, and . . . the person did not contribute to the creation of
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such circumstances in reckless disregard of the requirement to appear or surrender.”
§ 3146(c). This section implies that the Act is concerned with “the risk that the
defendant may flee or abscond, that is, that he would fail to appear by virtue of his
own volition, actions and will.” Montoya-Vasquez, 2009 WL 103596, at *5.
Despite the plain meaning of the word and the structure of the Act, the
government argues that interpreting “flee” to include involuntary removal would
better effectuate congressional intent. It argues that such an interpretation would
reconcile ICE’s authority to refer cases for criminal prosecution with its statutory
duty to promptly remove individuals who are subject to reinstated removal orders.
See 8 U.S.C. § 1231(a)(1)(A) (stating that ICE “shall remove the alien from the
United States within a period of 90 days”). But it is not clear to us that ICE must
remove Ailon-Ailon before trial. An illegal reentry prosecution may well be
completed prior to the ninety-day deadline. The government also argues that pre-trial
detention is justified by the inconvenience to ICE that will be involved if it must take
Ailon-Ailon into custody under its detainer. While it would be more convenient and
efficient for him to be held by the Marshals up to and during his trial, the
government’s convenience cannot justify a tortured reading of statutory language.
Further, regulations regarding voluntary departure provide that ICE may
temporarily prevent an alien from leaving the country “if his departure would be
prejudicial to the interests of the United States.” 8 C.F.R. § 215.2(a). A departure is
deemed prejudicial to United States interests if the alien “is needed in the United
States as a witness in, or as a party to, any criminal case under investigation or
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pending in a court.” § 215.3(g). Ailon-Ailon also cites ICE’s detainer form, which
invites law-enforcement agencies to work with ICE to keep a criminal defendant in
the United States for prosecution purposes.
In any event, to the extent any conflict exists, it is a matter for the Executive
Branch to resolve internally. “The problem here is not that defendant will absent
himself from the jurisdiction, but that two Article II agencies will not coordinate their
respective efforts. . . . It is not appropriate for an Article III judge to resolve
Executive Branch turf battles.” Barrera-Omana, 638 F. Supp. 2d at 1111; see also
United States v. Tapia, 924 F. Supp. 2d 1093, 1098 (D.S.D. 2013) (“[O]ne arm of the
Executive, wishing to prosecute this defendant criminally, is arguing that he is likely
to flee based on the possible actions of a different arm of the same Executive.”);
United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1170 (D. Or. 2012) (“If the
Executive Branch chooses not to release the Defendant and instead decides to
abandon criminal prosecution of the pending charge and proceed directly with
Defendant’s removal and deportation, the law allows the Executive Branch to do
that.”).
In light of the plain meaning of “flee,” the structure of the Bail Reform Act,
and the importance of the liberty interests at stake in this case, we decline to resolve
the alleged conflict within the Executive Branch. We hold that, in the context of
§ 3142(f)(2), the risk that a defendant will “flee” does not include the risk that ICE
will involuntarily remove the defendant.
IV
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The order of the district court denying Ailon-Ailon pre-trial release is
REVERSED. We REMAND with instructions to set appropriate conditions for
Ailon-Ailon’s release pending trial. When the conditions of release have been met,
the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the
detainer. We GRANT Ailon-Ailon’s motion to file a reply brief.
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