Summary
holding that “the magistrate judge's determinations on probable cause following a preliminary hearing [on a supervised-release violation] likely are not appealable under 28 U.S.C. § 636(b) because the magistrate judge's authority comes from Rule 32.1 rather than being delegated by district judges pursuant to section 636”
Summary of this case from United States v. LopezOpinion
NO: 2:17-CR-122-RMP
2019-04-17
UNITED STATES of America, Plaintiff, v. Miguel GUTIERREZ-DE LA ROSA, Defendant.
Matthew F. Duggan, US Attorney's Office, Spokane, WA, for Plaintiff. Benjamin Flick, Federal Defenders, Spokane, WA, for Defendant.
Matthew F. Duggan, US Attorney's Office, Spokane, WA, for Plaintiff.
Benjamin Flick, Federal Defenders, Spokane, WA, for Defendant.
ORDER DENYING GOVERNMENT'S APPEAL OF MAGISTRATE JUDGE'S DECISION
ROSANNA MALOUF PETERSON, United States District Judge
BEFORE THE COURT is the Government's Appeal of the Magistrate Judge's Dismissal of a Petition for Supervised Release Violation, ECF No. 62. Magistrate Judge John T. Rodgers dismissed the Supervised Release Violation Petition dated February 21, 2019, following a preliminary hearing. ECF No. 56. The Government seeks a review of Judge Rodgers's determination that the violations alleged in the petition lacked probable cause. ECF No. 62. A hearing was held on this matter on April 16, 2019. The Government was represented by Assistant United States Attorney Matthew F. Duggan. Defendant Miguel Gutierrez-De La Rosa was represented by Assistant Federal Defenders J. Houston Goddard and Stephen Roberts. The Court has considered the parties' arguments, the briefing, and the record, and is fully informed. This written order memorializes the oral ruling of the Court.
BACKGROUND
Defendant previously pleaded guilty to the offense of Alien in the United States after Deportation in violation of 8 U.S.C. § 1326 and was sentenced to nine months of imprisonment and twelve months of supervised release. ECF No. 36. The terms of Defendant's supervised release included Mandatory Condition #1, which states that the Defendant cannot commit another federal, state, or local crime, and Special Condition #1, which states that Defendant is prohibited from returning to the United States without advance permission. Id. at 3–5.
On January 14, 2019, Defendant was allegedly seen by a Border Patrol agent in an area twenty to fifty yards north of the United States-Mexico border. ECF No. 65-1 at 2. The Border Patrol agent inspected Defendant and found that he was a citizen of Mexico and not authorized to enter the United States. Id. Defendant was arrested and charged with illegal reentry into the United States in violation of section 1326 in the Southern District of California by criminal complaint. Id. at 3. The complaint against Defendant was later dismissed on motion by the Government. Id. at 4.
Because Defendant was still on supervised release at the time of these events, the Court signed a petition for the issuance of a warrant for supervised release violations that Defendant allegedly committed with his actions on January 14. ECF No. 48. The petition alleged that Defendant violated Mandatory Condition #1 by violating 8 U.S.C. § 1326 and Special Condition #1 by entering the United States. Id.
Defendant appeared before Magistrate Judge John T. Rodgers on April 1, 2019 for a preliminary hearing. ECF No. 55. Following the hearing, Judge Rodgers found that the alleged violations were not supported by probable cause and dismissed the petition. ECF No. 56. The Government moved to stay Judge Rodgers's order. ECF No. 59. Judge Rodgers granted that request. ECF No. 63.
The Government now appeals Judge Rodgers's finding of no probable cause to this Court. ECF No. 63. The Government argues that Judge Rodgers was clearly erroneous and acted contrary to law by dismissing the petition for a lack of probable cause. Id. Defendant argues that Judge Rodgers's determination was correct and that the Court should affirm his findings. ECF No. 65. Defendant also argues that this Court does not have jurisdiction to hear the Government's appeal. Id.
DISCUSSION
The Court's Jurisdiction over the Government's Appeal
The parties dispute whether this Court has jurisdiction over the Government's appeal of Judge Rodgers's dismissal order for lack of probable cause. ECF No. 63 at 3; ECF No. 65 at 2 n.1. The federal courts are creatures of federal statute whose jurisdiction may be expanded or confined by acts of Congress. U.S. Const. art. III, §§ 1 –2. Federal courts do not have appellate jurisdiction over an issue unless federal statutes grant the jurisdiction. See Carroll v. United States , 354 U.S. 394, 399, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957) ("[T]he existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute.").
The Government's general authority to appeal in a criminal case, and a federal court's jurisdiction over the Government's appeal, is described in 18 U.S.C. § 3731. United States v. Decinces , 808 F.3d 785, 789 (9th Cir. 2015) ; United States v. Apex Distrib. Co. , 270 F.2d 747, 749 (9th Cir. 1959) ("In criminal cases ... the jurisdiction of federal courts to entertain appeals by the United States derives from the Criminal Appeals Act, 18 U.S.C.A. § 3731."). Section 3731 permits the Government to appeal in criminal cases "from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment." 18 U.S.C. § 3731. Further, the statute permits an appeal by the Government "from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding." Id. Additionally, the statute allows the Government to appeal "from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release." Id.
A common thread connects the Government's appeal rights in section 3731. The beginning of each section of the statute indicates that the Government's appeal "shall lie to a court of appeals" from a decision, order, or judgment "of a district court" or "entered by a district court of the United States." 18 U.S.C. § 3731. The statute does not state when an appeal is appropriate from a magistrate judge to a district court judge. Id. The statute also does not expressly permit the Government to appeal a dismissal of a case at a preliminary hearing upon the judge's finding that the case is not supported by probable cause. Id.
Even though section 3731 is the general source of the Government's right to appeal in criminal cases, other statutes also permit the Government's appeal in limited instances. For example, one statute permits the Government to appeal a magistrate judge's order releasing a defendant pretrial. 18 U.S.C. § 3145(a). Another statute allows the Government to appeal a criminal sentence in limited instances. 18 U.S.C. § 3742(b). When a magistrate judge is presiding over a petty offense or misdemeanor case, the Federal Rules of Criminal Procedure permit the Government to appeal the magistrate judge's order to the district court judge "if a district judge's order could similarly be appealed." Fed. R. Crim. P. 58(g)(2)(A). In these instances, the federal courts would have jurisdiction over the Government's appeal because the authority to hear the appeal is explicitly stated by statute or rule.
None of these statutes or rules, however, vest a federal court with jurisdiction to hear an appeal from a magistrate judge's determination that no probable cause supported a supervised release violation petition following a preliminary hearing. The Federal Rule of Criminal Procedure governing supervised release violation preliminary hearings, 32.1, makes no mention of the Government's right to appeal the magistrate judge's determination. Simply, the Rule states that "a magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred," and that "[i]f a judge finds probable cause, the judge must conduct a revocation hearing. If the judge does not find probable cause, the judge must dismiss the proceeding." Fed. R. Crim. P. 32.1(b)(1)(A) & (C). Rule 32.1's counterpart, Rule 5.1, which governs preliminary hearings on criminal charges supported by complaint, similarly contains no right to appeal the magistrate judge's determination of probable cause. Fed. R. Crim. P. 5.1.
The Government cites 28 U.S.C. § 636(b)(1)(A) for its authority to appeal Judge Rodgers's decision and for the Court's jurisdiction over the appeal. ECF No. 63 at 4. Section 636 is the statute that establishes the jurisdiction and powers of United States Magistrate Judges. 28 U.S.C. § 636. In part, the statute states that magistrate judges "shall have ... all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts." 28 U.S.C. § 636(a)(1). The subsection cited by the Government in support of its argument states the following:
Notwithstanding any provision of law to the contrary, a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
The Court is not convinced that section 636(b)(1)(A) gives the Court jurisdiction over the Government's appeal. The statute does allow "[a] judge of the court" to "reconsider" certain magistrate judge decisions, but only those decisions that are designated "under this subparagraph (A)" to the magistrate judge by the district court judge. 28 U.S.C. § 636(b)(1)(A). The authority to preside over preliminary hearings is not designated to the magistrate judge by the district court but is expressly granted to the magistrate court by Rule 32.1(b)(1)(C). Therefore, the magistrate judge's determinations on probable cause following a preliminary hearing likely are not appealable under 28 U.S.C. § 636(b)(1)(A) because the magistrate judge's authority comes from Rule 32.1 rather than being delegated by district judges pursuant to section 636.
The Government also argues that Rule 58(g)(2)(A) vests the Court with jurisdiction over its appeal, but Rule 58 applies to petty offenses and other misdemeanors. See Fed. R. Crim. P. 58(a)(1) ("These rules apply in petty offense and other misdemeanor cases."). Further, Rule 58 only permits an appeal from a magistrate judge's decision "if a district judge's order could similarly be appealed." Fed. R. Crim. P. 58(g)(2)(a). This means that Rule 58, by itself, does not create appellate jurisdiction; the authority to appeal a decision under Rule 58 must come from some other source that would similarly allow an appeal from a district judge's order. Id. Rule 58 does not vest this Court with jurisdiction over the Government's appeal.
Last, the Government argued at oral argument that this Court should follow the Fifth Circuit's decision in United States v. Brigham , in which the Fifth Circuit found that the Government can appeal a magistrate judge's dismissal for lack of probable cause on a supervised release petition following a preliminary hearing. 569 F.3d 220 (5th Cir. 2009). The Fifth Circuit began its analysis in Brigham by stating that "the question to be decided is whether [ Rule 32.1 ] also precludes the district court from reviewing that determination [of probable cause]." Id. at 226. It found that Rule 32.1 does not prohibit district courts from making probable cause determinations, so the magistrate judge's findings should be appealable. Id. at 227. The Fifth Circuit also recognized the potential Article III concerns with an unappealable magistrate judge order. Id. at 227–28. Finally, the Fifth Circuit relied on 18 U.S.C. § 3742(h), which permits an appeal of a final sentence imposed by a magistrate judge to the district court. Id. at 229.
The Court finds Brigham 's conclusion unpersuasive. First, the Brigham panel began by determining whether Rule 32.1 precludes an appeal. However, because the jurisdiction of district courts is governed by statute, jurisdiction does not exist unless that jurisdiction is expressly granted by an act of Congress. See U.S. Const. art. III, §§ 1 –2; Carroll , 354 U.S. at 399, 77 S.Ct. 1332. The threshold issue should be whether Rule 32.1 permits an appeal. Second, the Brigham panel relied on 18 U.S.C. § 3742(h), but that statute only applies to "an otherwise final sentence imposed by a United States magistrate judge." 18 U.S.C. § 3742(h). Judge Rodgers did not impose a "final sentence" on Defendant when Judge Rodgers dismissed the supervised release violation petition for lack of probable cause.
The Article III concerns are equally inapplicable. The Fifth Circuit relied on Thomas v. Arn , a Supreme Court case discussing a district court's authority to review a magistrate's decision made under 28 U.S.C. § 636, but as the Court already stated above, a magistrate judge's authority to preside over a preliminary hearing does not come from that statute; it comes from Rule 32.1. See Fed. R. Crim. P. 32.1(b)(1)(A). The Brigham panel also found that a lack of appeal in this situation would threaten "the judicial power or the independence of judicial decisionmaking that underlies Article III." Brigham , 569 F.3d at 228 (quoting United States v. Dees , 125 F.3d 261, 268 (5th Cir. 1997) ). As recognized by the cases cited by the Brigham panel, however, magistrate judges can exercise final decision-making authority for issues that are "ministerial in nature." United States v. Johnston , 258 F.3d 361, 370 (5th Cir. 2001) ; see also United States v. Colacurcio , 84 F.3d 326, 333–34 (9th Cir. 1996) (holding that magistrate judges may preside over "subsidiary matters" in a criminal case). A magistrate judge's determination of probable cause underlying a supervised release violation petition is ministerial in nature, considering the "defendant's rights at stake, the discretion exercise and the degree of responsibility conferred, and the nature of the interactions between the judge and jury." United States v. Gomez-Lee , 207 F.3d 623, 629 (9th Cir. 2000). Therefore, it is likely that a magistrate's final decision-making authority in a preliminary hearing for a supervised release violation petition does not implicate Article III concerns.
In conclusion, the Court has serious doubts as to whether the Court has jurisdiction over the Government's appeal from Judge Rodgers's decision in this case. However, because the resolution of this case does not depend on the determination of this complex issue, the Court assumes, without deciding, that it has jurisdiction over the Government's appeal, and will decide the issues on the merits. The parties agreed at oral argument that if the Court has jurisdiction over this appeal, the standard of review in this case is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A).
The Alleged Supervised Release Violations
The parties dispute whether probable cause supports the assertion that Defendant committed a crime, in violation of Mandatory Condition #1 of his supervised release conditions, and whether Defendant entered the United States, in violation of Special Condition #1. ECF No. 63 at 4; ECF No. 65 at 5.
The petition alleges that Defendant violated the law by entering the United States after a prior deportation, in violation of 8 U.S.C. § 1326. ECF No. 48 at 1. The petition alleges that Defendant was seen in an area known as "Whiskey 8," which is "in between the fences at the border." Id. Defendant was allegedly fifty yards north of the U.S.-Mexico border. Id. Defendant was charged with illegal reentry by criminal complaint in the Southern District of California, but that charge was later dismissed. ECF No. 65-2 at 3–4.
At the preliminary hearing, Judge Rodgers found that Defendant was found somewhere between twenty and fifty yards north of the U.S.-Mexico border in an area "between the fences." ECF No. 56 at 2. Judge Rodgers found that Defendant encountered a Border Patrol agent and told that agent that he was under the influence of methamphetamine and alcohol. Id.
Because he was under the influence of methamphetamine and alcohol when he was found "between the fences," Defendant argued before Judge Rodgers that he had not entered the United States because attempted reentry is a specific intent crime, ECF No. 56 at 3; see also United States v. Gracidas-Ulibarry , 231 F.3d 1188, 1195–96 (9th Cir. 2000), and voluntary intoxication is a defense. Gracidas-Ulibarry , 231 F.3d at 1195. Judge Rodgers held that the petition alleged that Defendant committed a completed reentry into the United States, not an attempted reentry. ECF No. 56 at 3; ECF No. 48 at 1. Completed reentry is a general intent crime, to which voluntary intoxication is not a defense. Gracidas-Ulibarry , 231 F.3d at 1194.
Defendant also argued that the Government did not show probable cause that Defendant had actually entered the United States. ECF No. 58 at 3. Judge Rodgers found that mere presence in the United States is insufficient to establish entry into the United States or a violation of section 1326. Id. The Government also must establish that Defendant entered the United States free from official restraint. Id. ; see also United States v. Ruiz-Lopez , 234 F.3d 445, 448 (9th Cir. 2000). Judge Rodgers found that "official restraint" includes any government surveillance of Defendant, regardless of whether Defendant was aware of the surveillance or intended to evade inspection. ECF No. 58 at 3; Ruiz-Lopez , 234 F.3d at 448.
With these findings, Judge Rodgers concluded that the Government could not support the two alleged violations with probable cause. ECF No. 58 at 3–4. Judge Rodgers determined that it was unclear whether Defendant entered the United States free from official restraint. Id. Therefore, Judge Rodgers dismissed the petition against Defendant. Id. at 4.
The Government argues that Judge Rodgers erred by evaluating whether the 1326 offense "would pass muster beyond a reasonable doubt, in light of affirmative defenses." ECF No. 63 at 4. The Government is correct in arguing that, at this stage, the determination is whether probable cause supports the allegations in the petition. Fed. R. Crim P. 32.1(b)(1)(A) & (C). Additionally, the Government only needs to prove its allegations by a preponderance of the evidence when alleging that Defendant committed a crime in violation of his supervised release violations and does not need to show that Defendant was convicted of a crime. 18 U.S.C. § 3583(e)(3) (setting the standard for supervised release violations as a preponderance of the evidence); U.S.S.G. § 7B1.1 cmt. 1 ("A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct.").
Nonetheless, the Government's argument here is unfounded because Judge Rodgers only examined the elements of a section 1326 violation rather than affirmative defenses. As the Ninth Circuit states "the government must ... establish that the alien entered the United States free from official restraint at the time officials discovered or apprehended him." Ruiz-Lopez , 234 F.3d at 448. Further, Judge Rodgers stated that "[t]his Court cannot find probable cause that Defendant ‘entered’ the United States as that term is understood in this Circuit." ECF No. 58 at 4. Judge Rodgers evaluated the correct elements and used the appropriate probable cause standard as opposed to beyond a reasonable doubt. In addition, Judge Rodgers relied on Ruiz-Lopez , which is controlling Ninth Circuit law. The Government's first argument is unfounded, and Judge Rodgers' decision was not clearly erroneous.
The Government also argues that Defendant arguably committed other crimes by eluding immigration officers under 8 U.S.C. § 1325(a)(2) and not presenting himself for inspection under 19 U.S.C. § 1459. ECF No. 63 at 6; ECF No. 68 at 3. However, these crimes were not listed in the original petition. ECF No. 48. The Ninth Circuit requires that the petition contain the alleged crimes committed, otherwise the accused would be without notice of the claims against him or her and be unable to present a defense. United States v. Havier , 155 F.3d 1090, 1094 (9th Cir. 1998). "Indeed, notice of the specific statute guarantees the fairest opportunity for the defendant to isolate various elements of the crime and present facts in his defense." Id. The Government cannot raise these new crimes on appeal now that they were not included in the underlying petition.
Even if these crimes had been included in the petition, the Court does not find that the facts support probable cause that Defendant committed them. First, eluding immigration officers under section 1325(a)(2) requires a "volitional act of evasion," and the facts in this case do not support a finding that Defendant committed a volitional act to evade Border Patrol agents. United States v. Yanez-Chavez , No. 18-mj-20068-BTM-MSC, 2018 WL 6445169, at *4 (S.D. Cal. Dec. 10, 2018) ; see also ECF No. 65-1 at 2 (stating that Defendant walked towards the Border Patrol agent, rather than away). Second, a criminal violation of 19 U.S.C. § 1459 must be supported by an intentional act, and there is no evidence that Defendant intentionally intended to violate the reporting requirements set out in section 1459. 19 U.S.C. 1459(g) ; ECF No. 65-1 at 2. The Government also argues that probable cause exists to support a finding that Defendant entered the United States, which is the second violation in the petition. ECF No. 63 at 6. In arguing this, the Government argues that entry into the United States under section 1326 and entry into the United States in violation of a supervised release condition have different standards. Id. However, the definition of entry under section 1326 comes from a "longstanding and widely accepted understanding of what it means to enter the United States." United States v. Argueta-Rosales , 819 F.3d 1149, 1159 (9th Cir. 2016). The Government does not cite to any authority stating that "entry" under section 1326 has a different definition than returning to the United States in violation of Special Condition #1. The Court finds that because the Government did not support probable cause that Defendant entered the United States in violation of section 1326, the Government also did not support probable cause that Defendant entered the United States in violation of Special Condition #1.
It should be noted that this section is not in Title 8 or 18 of the United States Code, which relates to immigration and criminal acts, respectively, but rather in Title 19, which is titled "Customs Duties." Section 1459 comes from the Tariff Act of 1930 and falls within a part of the Act relating to the report, entry, and unloading of vessels and vehicles. There is no support cited that this statute applies to immigration cases.
The Court finds that Judge Rodgers's order dismissing the supervised release violations against Defendant was not clearly erroneous or contrary to law. Therefore, the Court affirms Judge Rodgers' decision dismissing the petition.
Accordingly, IT IS HEREBY ORDERED :
1. The Order Following Preliminary Hearing, ECF No. 56 , is AFFIRMED and the petition, ECF No. 48 , is DISMISSED .
2. The Government's Appeal, ECF No. 63 , is DENIED .
IT IS SO ORDERED . The District Court Clerk is directed to enter this Order and provide copies to counsel.