United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-1357 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Domingo Pacheco-Poo, also known as Domingo Pacheco-Pu lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________ Submitted: January 16, 2020 Filed: March 11, 2020 ____________ Before BENTON, GRASZ, and STRAS, Circuit Judges. ____________ BENTON, Circuit Judge. The United States simultaneously prosecuted and removed Domingo Pacheco- Poo. He sought to dismiss the indictment, arguing that the government’s simultaneous acts violate the Bail Reform Act (BRA) and the Constitution. The district court1 did not dismiss the indictment. Pacheco-Poo pleaded guilty, preserving his right to appeal. He appeals the judgment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. Immigration and Customs Enforcement (ICE) detained Pacheco-Poo. The United States charged him with illegal reentry under 8 U.S.C. § 1326(a), and transferred him to the United States Marshals Service for pretrial detention. ICE then filed a detainer request with the Marshal. Pacheco-Poo moved for pretrial release. The United States notified the court that if it ordered release, the Marshal—because of the detainer—would transfer Pacheco-Poo to ICE, which could remove him before trial. The United States magistrate judge ordered release. The district court rejected the government’s motion for revocation. The Marshal transferred Pacheco-Poo to ICE. Pacheco-Poo sought to dismiss the indictment, arguing that the Executive Branch violated his rights under the BRA and the Constitution by simultaneously proceeding with prosecution and removal. The district court refused to dismiss the indictment. Pacheco-Poo pleaded guilty, preserving his right to appeal. The district court accepted the plea, sentencing Pacheco-Poo to time served. Eleven days later, ICE removed him. This court reviews de novo a district court’s legal conclusions, and for clear error its factual findings. See United States v. Palmer, 917 F.3d 1035, 1037 (8th Cir. 2019); United States v. Washington, 893 F.3d 1076, 1079-80 (8th Cir. 2018). 1 The Honorable C.J. Williams, United States District Judge for the Northern District of Iowa. -2- Pacheco-Poo believes that the BRA conflicts with the Immigration and Nationality Act (INA), so that a BRA release order precludes INA removal. This interpretation would require the Executive Branch to choose: do not remove a defendant on pretrial release, or dismiss the criminal case. Pacheco-Poo’s interpretation is wrong. The BRA requires a “judicial officer” to detain a defendant pretrial if “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). The INA requires the “Attorney General” to remove aliens from the United States. See, e.g., 8 U.S.C. §§ 1231(a)(1)(A), (a)(5). The BRA and INA co-exist. “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 ...
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