United States v. Monteverde
4:20-cr-00166
D. Ariz.Oct 7, 2021Background
- Dec. 10, 2019: Monteverde entered the U.S. at Nogales; CBP discovered drugs in her vehicle and she was arrested and made an initial appearance Dec. 11, 2019.
- She had no prior convictions, was a lawful permanent resident, lived in Arizona with family, and Pretrial Services recommended release.
- On Dec. 13, 2019 she was released on personal recognizance with conditions: appear at proceedings, report to pretrial services, not leave Arizona without court permission, and surrender travel documents; Pretrial Services notified Passport Services of the passport restriction.
- Despite the release order, ICE took Monteverde into custody and removed her to Mexico on Jan. 8, 2020; a grand jury returned an indictment that same day.
- Defense counsel notified the Government of the deportation and asked for dismissal; the Government declined and offered to parole her in for court appearances instead. Monteverde did not appear at the scheduled arraignment and a warrant issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Government must choose between prosecution and deportation when an ICE detainer exists | United States: No—ICE may remove an alien even if prosecution is pending. | Monteverde: Government must pursue prosecution or refrain from deportation; removal violated her rights. | Court: ICE removal jeopardized the ability to try her and resulted in constitutional and statutory violations. |
| Whether Speedy Trial Act delay is excludable because defendant was absent | United States: Time excluded due to defendant's absence/failure to keep in contact with pretrial services. | Monteverde: She was removed by the Government, not avoiding prosecution; Government hasn't shown due diligence or that whereabouts were unknown. | Court: Time is not excludable under §3161(h)(3); Speedy Trial Act violated; indictment must be dismissed. |
| Whether Sixth Amendment right to counsel was violated by removal | United States: No—defendant could consult by phone or be paroled into the U.S. for meetings. | Monteverde: Counsel has had no access; removal materially interfered with confidential attorney-client communications. | Court: Removal substantially impaired right to counsel; Sixth Amendment violation found. |
| Appropriate remedy—dismissal with or without prejudice | United States: If dismissal warranted, it should be without prejudice; DOJ did not order ICE removal. | Monteverde: Dismissal with prejudice required to remedy irreparable prejudice and deter future removals. | Court: Dismissal with prejudice recommended as the appropriate and necessary remedy. |
Key Cases Cited
- United States v. Barrera-Moreno, 951 F.2d 1089 (9th Cir. 1991) (district court supervisory dismissal principles)
- United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015) (government removal that jeopardizes trial permits district-court remedies)
- United States v. Alvarez-Perez, 629 F.3d 1053 (9th Cir. 2010) (Speedy Trial Act dismissal required when statutory time limits are not met)
- Barker v. Wingo, 407 U.S. 514 (1972) (Sixth Amendment speedy trial balancing framework)
- Zedner v. United States, 547 U.S. 489 (2006) (Speedy Trial Act exclusions and statutory structure)
- United States v. Olsen, 995 F.3d 683 (9th Cir. 2021) (interpretation of Speedy Trial Act timing)
- Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014) (government interference with attorney-client relationship violates Sixth Amendment)
- United States v. Taylor, 487 U.S. 326 (1988) (dismissal with prejudice is a stronger remedial sanction and more likely to induce procedural change)