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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Fardi Perez-Canez,

Defendant.

No. CR-18-00229-PHX-JJT

ORDER 

At issue is Defendant Fardi Dayan Perez-Canez’s Motion to Dismiss Indictment 

with Prejudice (Doc. 36, Mot.), to which the Government filed a Response (Doc. 38, Resp.) 

and Defendant filed a Reply (Doc. 39, Reply). For the reasons that follow, the Court will 

grant the Motion to Dismiss Indictment, but without prejudice.

I. FACTS

The Government charged Defendant by Complaint on January 25, 2018 with 

Importation of a Controlled Substance and Possession of a Controlled Substance with 

Intent to Distribute. (Doc. 1.) Defendant was released from custody on February 1, 2018 

with conditions. (Doc. 9.) On February 20, 2018, the Government charged Defendant by 

Indictment with Importation of Methamphetamine, Possession with Intent to Distribute 

Methamphetamine, and Forfeiture Allegations. (Doc. 10.) On March 1, 2018, officials of 

the United States Department of Homeland Security’s Immigration and Customs 

Enforcement (“ICE”) took Defendant into custody and detained him for immigration 

proceedings. (Mot. at 3.) In September 2018, Defendant was deported. (Mot. at 3.)
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Defendant now moves to dismiss the Indictment against him because he has been 

deported. (Mot. at 4–6.) Defendant argues that the Government abandoned its prosecution 

in favor of removal proceedings when it chose to deport him after he was released on 

pretrial supervision. (Mot. at 4–6.) Defendant also urges that, by deporting him, the 

Government has violated his right to counsel under the Sixth Amendment to the 

Constitution of the United States. (Mot. at 6–8.) 

II. ANALYSIS

Neither the Supreme Court nor the Court of Appeals for the Ninth Circuit has held 

that the government flatly, and in all circumstances, must choose between removing a 

person subject to a removal order or prosecuting them. The Ninth Circuit has held, 

however, that if the government, by removing a defendant from the United States 

“jeopardizes the district court’s ability to try him, then the district court may craft an 

appropriate remedy.” United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015).

Therefore, the relevant inquiry is whether the Government, by deporting Defendant, has 

jeopardized the Court’s ability to try him. The Court concludes it has based on the facts 

presented.

Defendant cites United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 

2012), for the proposition that ICE must choose between removing or deporting a 

defendant and prosecuting him. (Mot. at p. 4.) In Trujillo-Alvarez, the court, pursuant to 

the Bail Reform Act, 18 U.S.C. § 3141 et seq., held a detention/release hearing and ordered 

the defendant released upon a finding that he did not present a danger to the community or 

a flight risk. Thereafter, ICE took the defendant into administrative custody and held him 

at an ICE detention center pending removal. ICE then deferred removal pending the 

criminal proceeding, and as the district court found, held the defendant thus “for the 

purpose of delivering him to trial.” Trujillo-Alvarez, 900 F. Supp. 2d at 1178. The court in 

Trujillo-Alvarez found ICE’s detention of the defendant violated the Bail Reform Act and 

the magistrate judge’s release order issued pursuant to it and ordered ICE to release the 

defendant to the District of Oregon within a week or it would dismiss the criminal case.
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Trujillo-Alvarez is inapposite, because it addresses enforcement of the Bail Reform 

Act. The Trujillo-Alvarez court prohibited the federal executive branch from 

countermanding decisions made under the Act through administrative detentions, as its 

holding makes clear:

What neither ICE nor any other part of the Executive Branch 

may do [] is hold someone in detention for the purpose of 

securing his appearance at a criminal trial without satisfying 

the requirements of the [Bail Reform Act.]

Id. at 1179. The present case does not involve ICE taking Defendant into custody to hold

him secure for trial. ICE removed Defendant from the United States pursuant to the

removal order against him. And to the extent ICE held Defendant in custody pending that 

removal, it did so for the purpose of effecting the removal only—not to hold Defendant for 

appearance at trial. The Court thus finds Trujillo-Alvarez unpersuasive here.

Defendant also cites United States v. Resendiz-Guevara, 145 F. Supp. 3d 1128 

(M.D. Fla. 2015), which presents facts more similar to the instant case and addresses the 

same legal issues as this case. In Resendiz-Guevara, the defendant was charged with 

reentry after deportation and sought release pending trial. A magistrate judge released him 

on a bond secured by his two mobile homes pursuant to the Bail Reform Act. On the day 

the defendant was released from Marshal Service custody, ICE took him into 

administrative custody and deported him to Mexico. The court in Resendiz-Guevara found 

that the government had abandoned its prosecution of the defendant by deporting him, and 

that by so doing it also violated the defendant’s Constitutional right to counsel.

In so finding, the court noted that the geographical circumstances made the 

defendant’s return, once removed, infeasible. Florida has no border with, or common ports 

of entry with, Mexico that could facilitate a defendant’s parole or return for court 

proceedings as a practical matter. The court further noted that the government made no 

legal provisions for the defendant’s return, such as parole or other methods to facilitate it. 

Applying the law of this circuit, then, in the circumstances of Resendiz-Guevara, the 
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government’s action in deporting the defendant could certainly be found to have 

“jeopardized the district court’s ability to try him.” See Santos-Flores, 794 F.3d at 1091.

This Court previously considered the persuasiveness of Resendiz-Guevara in a

similar case. See United States v. Marco Antonio Solorzano-Velasquez, No. CR-16-00624-

PHX-JJT, Doc. 40. In Solorzano-Velasquez, the defendant was a Mexican citizen charged 

with reentry after removal. He was released on bond and immediately taken into

immigration custody and deported. He moved to dismiss the charge against him and 

exonerate his bond, citing Resendiz-Guevara. The Court ultimately concluded that the 

circumstances of that case were meaningfully different from those in Resendiz-Guevara

and denied the defendant’s motion. First, the geographical proximity of Arizona and 

Mexico made paroling the defendant into Arizona more feasible than in Resendiz-Guevara. 

Next, the magistrate judge required that the defendant, if deported, “take every lawful 

action to facilitate [his] entry into the United States for the purpose of appearing.” This 

requirement, combined with the government’s communications to the defendant that it 

would parole him into the country for that precise purpose, led the Court to conclude that 

the government did not jeopardize its ability to try the defendant under Santos-Flores. 

Despite nearly identical geographical circumstances, the Court finds the present 

case distinguishable from Solorzano-Velasquez on the remaining facts. In particular, the 

Court is not persuaded that the Government has made adequate provisions for Defendant’s 

return to the United States. Although the Government stated in its Response that it would 

parole Defendant into Arizona (Resp. at 2–3), there is no demonstration that parole can be 

facilitated here because there is no showing of any steps to make possible even the 

communication necessary to coordinate such parole. Neither party claims to know where 

Defendant is located. (Resp. at 3; Reply at 2.) Moreover, more than one year has elapsed 

since Defendant was deported. Any future attempts by the Government to locate Defendant 

would be infeasible and untimely at this late juncture. Although Defendant’s Release Order 

stated that he was to appear at further proceedings as required, maintain weekly contact 

with his attorney, and advise the Court and parties of changes in his contact information 
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(Doc. 9), it did not state that Defendant, if deported, was to facilitate his own entry back 

into the United States, like in Solorzano-Velasquez.

1

Since neither party purports to know where Defendant is located and his release 

conditions do not require him to facilitate his attendance at further proceedings in this 

matter, the Court finds that ICE’s actions have jeopardized the Court’s ability to try 

Defendant and therefore dismisses the Indictment on those grounds. It does so, however, 

without prejudice. In reaching this conclusion, the Court recognizes and credits the 

Government’s representation that it will parole Defendant into the United States for further 

proceedings as evidence of the absence of any bad faith. Moreover, there is no evidence 

before the Court that the Government has intentionally interfered with any parole attempts 

up to this point. 

Defendant also argues that dismissal is appropriate because the Government has 

violated his Sixth Amendment right to counsel. (Mot. at 6–8.) Specifically, defense counsel 

alleges that Defendant was stranded without any possessions, does not have access to a 

telephone, and does not have his attorney’s contact information. (Reply at 2–3.) These bare 

allegations, without more, put Defendant in no different a position than many domestically 

released defendants. The Court observes that in removing a defendant to Mexico, ICE 

creates impediments to his return for court proceedings. But the Court also notes that a 

defendant in that situation may still have adequate access to counsel that is qualitatively no 

different than any other out-of-custody defendant residing outside the state of Arizona. Had 

defense counsel provided Defendant with contact information, Defendant could reach his 

counsel as easily from Mexico as he could from Maine or Washington. Because Defendant 

has not substantiated his allegations of inadequate access to counsel, the Court will not find

that his Sixth Amendment rights have been violated. 

1 The Release Order also stated that Defendant shall not agree to voluntary deportation if 

taken into immigration custody. (Doc. 9.) In July 2018, the Government filed a Motion to 

Re-Examine Defendant’s Conditions of Release and Request for a Warrant after Defendant 

filed a Motion to Set Master Calendar Hearing for Voluntary Departure. (Doc. 29.) 

However, Defendant withdrew his petition and reinstated his application for cancellation 

of removal prior to the scheduled removal proceedings. (Doc. 31.) Because Defendant 

remedied this violation of his release conditions, the Court does not consider it here.
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IT IS ORDERED granting in part and denying in part Defendant’s Motion to 

Dismiss Indictment (Doc. 36) and dismissing the Indictment without prejudice.

Dated this 2nd day of March, 2020.

 

Honorable John J. Tuchi

United States District Judge