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United States v. Nunez

United States Court of Appeals, Third Circuit

July 2, 2019


          Argued May 21, 2019

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-18-cr-00040-001) District Judge: Honorable Joseph F. Leeson, Jr.

          Melanie B. Wilmoth Robert A. Zauzmer [ARGUED] Office of the United States Attorney Counsel for Appellee

          Jose C. Campos [ARGUED] Hugh Campos Counsel for Appellant

          Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.



         Ilma Alexandra Soriano Nunez was charged with various crimes and appeared for a bail hearing. Conditions of release were set under the Bail Reform Act ("BRA"). Thereafter, Immigration and Customs Enforcement ("ICE") lodged and executed a detainer, and she was detained for removal proceedings. Because her detention for removal proceedings under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(a)(1), does not conflict with the order granting release in connection with her criminal case under the BRA, 18 U.S.C. § 3142, the District Court declined to dismiss the indictment and rejected Soriano Nunez's request that it rely on the BRA to order her release from ICE custody. We lack jurisdiction over the ruling denying the request to dismiss the indictment and will dismiss that aspect of the appeal. We do, however, agree with the Court's bail ruling and will affirm that part of its order.


         A grand jury indicted Soriano Nunez for passport fraud, 18 U.S.C. § 1542; making a false representation of United States citizenship, 18 U.S.C. § 911; using a false social security number, 42 U.S.C. § 408(a)(7)(B); and producing a state driver's license not issued for her use, 18 U.S.C. § 1028(a)(1), (b)(1)(A), and (2). Soriano Nunez surrendered and was brought before a Magistrate Judge. She was then temporarily detained under 18 U.S.C. § 3142(d), a provision of the BRA that allows for, among other things, the ten-day pretrial detention of non-citizens who may pose a flight risk or danger so ICE may take them into custody.[1] ICE lodged a detainer. Twelve days later, a different Magistrate Judge arraigned Soriano Nunez, denied the Government's motion for pretrial detention under 18 U.S.C. § 3142(e), and set conditions for her release. The District Court denied the Government's motion to revoke the order. Thereafter, ICE executed its detainer, taking Soriano Nunez into custody for her to appear for removal proceedings.[2]

         While in ICE custody, Soriano Nunez moved to dismiss her indictment or obtain release from detention, arguing that § 3142(d) gives the United States "the choice of [either] taking the Defendant into [ICE] custody during the ten-day period and proceeding with removal or continuing with the criminal prosecution in which case the BRA controls." App. 47. The District Court denied Soriano Nunez's motion to dismiss or for release, holding that the INA, 8 U.S.C. § 1226(a)(1), allowed ICE to detain Soriano Nunez during the pendency of removal proceedings notwithstanding the parallel criminal action, and her detention therefore did not conflict with the BRA. Soriano Nunez appeals.


         As a threshold matter, we must address the scope of our jurisdiction over Soriano Nunez's appeal. To the extent Soriano Nunez seeks review of the order denying her motion to dismiss the indictment, we lack jurisdiction. Generally, our jurisdiction is limited to final judgments. An order denying dismissal of an indictment is not a "final judgment of the district court." 28 U.S.C. § 1291. "Final judgment in a criminal case means sentence. The sentence is the judgment." United States v. Rodriguez, 855 F.3d 526, 530 (3d Cir. 2017) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). Moreover, none of the grounds for interlocutory appeal in a criminal case apply here. See, e.g., Heltoski v. Meanor, 442 U.S. 500, 508 (1979) (recognizing Speech or Debate Clause immunity as a legitimate ground to appeal denial of a motion to dismiss an indictment); Abney v. United States, 431 U.S. 651, 662 (1977) (hearing appeal of motion to dismiss indictment on double jeopardy grounds); United States v. Mitchell, 652 F.3d 387, 392-93 (3d Cir. 2011) (setting forth the required elements of an appealable collateral order). Thus, we must dismiss her appeal to the extent it seeks review of the District Court's refusal to dismiss her indictment.

         We do, however, have jurisdiction to review the ruling denying Soriano Nunez's claim that her BRA release order forecloses her ICE detention. She argues that the BRA, 18 U.S.C. § 3142, provides the sole means to release or detain a criminal defendant and that the District Court erred in refusing to extend its release order to bar her ICE detention. The BRA gives us jurisdiction to hear "[a]n appeal from a release or detention order, or from a decision denying revocation or amendment of such an order." 18 U.S.C. § 3145(c). Here, Soriano Nunez essentially challenges the Court's decision to deny her request to enforce its BRA order. Put differently, she asks us to review the Court's rejection of her assertion that the BRA order requires her release from ICE custody. To the extent Soriano Nunez challenges ...

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