Judge DENIES the Government's Bid to Detain Mr. Abrego Pending Trial

Mr. Abrego will likely remain in ICE detention, however.

In a ruling that echoes Judge Barbara Holmes’ skepticism about the weakness of the charges against Mr. Abrego (he prefers Abrego to Abrego Garcia), the magistrate judge has denied Pam Bondi’s request to keep him incarcerated pending trial - though he will likely be detained by ICE on other grounds.

The judge writes:

Perhaps the sole circumstance about which the government and Abrego may agree in this case is the likelihood that Abrego will remain in custody regardless of the outcome of the issues raised in the government’s motion for detention. Either Abrego will remain in the custody of the Attorney General or her designee pending trial if detained under the Bail Reform Act or he will likely remain in U.S. Immigration and Customs Enforcement (“ICE”) custody subject to anticipated removal proceedings that are outside the jurisdiction of this Court.

That suggests the Court’s determination of the detention issues is little more than an academic exercise. That suggestion is understandable. But the foundation of the administration of our criminal law depends on the bedrock of due process.

Abrego, like every person arrested on federal criminal charges, is entitled to a full and fair determination of whether he must remain in federal custody pending trial. The Court will give Abrego the due process that he is guaranteed.

Her first issue with the government is like many of the subsequent problems - the DoJ exaggerated the facts during the detention hearing. That’s despite the US Attorney for the Middle District arguing the case personally. That is extremely rare, even in high profile trials, let alone magistrate judge detention hearings. The judge writes:

To be clear, the offenses of which Abrego is charged are human smuggling, not human trafficking. Although “smuggling” and “trafficking” were sometimes used interchangeably during the detention hearing, there is a distinct difference between the two under the law. They are not transposable.

One of the arguments that the government made to justify Mr. Abrego be held pending trial is that a minor was involved in one of his felonies. The DoJ contends that one of the people he was transporting when he was pulled over by the Tennessee Highway Patrol in 2022 was under the age of 18. To prove this, the DoJ used a photograph of a handwritten roster of the people in the van during the traffic stop. The judge says:

Here, the Court finds that the origination of the roster and the circumstances surrounding its creation are so remote and attenuated from Special Agent Joseph’s testimony that it cannot be given the conclusive weight for which it is offered by the government. The exhibit on which the government relies is a photograph taken by THP Trooper Foster, not by Special Agent Joseph – first layer of hearsay – of a document prepared at the request of THP Trooper Foster – second layer of hearsay – by the occupants of the vehicle driven by Abrego – third layer of hearsay.

Clearly, the most reliable evidence of the accuracy of the information in the roster would be the testimony of the individual who wrote down that information. Special Agent Joseph testified that, although HSI has identified and located six of the nine other people in the vehicle driven by Abrego on November 30, 2022, they have not located the individual who is purported to have provided a birth year of 2007. Absent that individual’s testimony, the next most reliable source about the accuracy of the roster information would be the testimony of THP Trooper Foster. If subject to examination, THP Trooper Foster could be asked whether he considered the 2007 birth year to be reasonable based on his observation of the individual who provided the information.

Did the passenger look like a 15-year-old? Was he shaving yet? Was he slight of build? But THP Trooper Foster was not offered as a witness. According to Special Agent Joseph, THP Trooper Foster’s body camera footage was purged and is no longer available. Special Agent Joseph additionally testified that THP Trooper Foster took photographs of the passports of the occupants of the vehicle, which would have confirmed the accuracy of the 2007 birthdate. However, even though the photograph of the roster was produced, the photographs of the passports cannot be located, according to Special Agent Joseph’s testimony.

But get this, the 2007 birthdate looks like it’s been edited!

Additionally, defense counsel argued at the detention hearing that the 7 in the written birth year of 2007 appears to have been modified from a 1. That is not entirely without foundation, as there does appear to be some overwriting of the 7. Further, there is a question about whether the 7, even if not edited, is a number seven (7) or a number one (1). If a number one (1), then the individual with that birth date was born in 2001, not 2007.

Next, the judge addresses that fact that each of the cooperating witnesses in this case have something to gain from their cooperation. To be sure, the DoJ uses cooperating witnesses all the time that stand to gain something from assisting the government. However, it is not often that the DoJ uses testimony from a conspiracy leader to get dirt on someone more junior in the operation.

Here’s how the judge addresses the cooperating witnesses:

Importantly, each cooperating witness upon whose statements the government’s argument for detention rests stands to gain something from their testimony in this case.

The first cooperator, who provided interview statements and grand jury testimony, has two prior felony convictions, has previously been deported five times, and was released early from a 30-month federal prison sentence for human smuggling as part of his cooperation in this case. He is the purported domestic leader of the human smuggling organization in which Abrego is accused of participating. He has been granted deferred action on deportation in exchange for his testimony. Special Agent Joseph acknowledged on cross-examination that the first cooperator will likely be granted work release as part of the conditions of the halfway house in which he currently resides following his early release from prison.

That means that the DoJ is willing to release a known violent MS13 smuggler to get a conviction on Mr. Abrego for a crime that carries less than one year in prison. Mr. Abrego’s alleged ties to MS13 were the entire basis for the government to ship him to CECOT in El Salvador, but they’re willing to give asylum to a known member? Make it make sense.

The second cooperator is also an avowed member of the human smuggling organization and is presently in custody charged with a federal crime for which he hopes to be released in exchange for his cooperating grand jury testimony. He has also been previously deported and has requested deferred action on deportation in exchange for his cooperation. The second cooperator is a closely related family member of the first cooperator.

So now we’re going to release two known MS13 human smugglers?

Next, the judge addresses more hearsay evidence:

The first female cooperator is also closely related to the first and second male cooperators. She testified before a federal grand jury in Texas about the investigation of Abrego and has requested deferred action on deportation in exchange for her cooperation. Special Agent Joseph did not personally interview this first female cooperator.

The Court gives little weight to this hearsay testimony – double hearsay through Special Agent Joseph’s testimony – of the first male cooperator, a two-time, previously-deported felon, and acknowledged ringleader of a human smuggling operation, who has now obtained for himself an early release from federal prison and delay of a sixth deportation by providing information to the government. Nor do the hearsay statements of the second male cooperator on this issue fare any better, as his requested release from jail and delay of another deportation depends on providing information the government finds useful.

But let’s say we took their double hearsay testimony at face value. The judge says their testimony still defies common sense:

Both male cooperators stated that, other than three or four trips total without his children, Abrego typically took his children with him during the alleged smuggling trips from Maryland to Houston and back, some 2,900 miles round-trip, as often as three or four times per week. The sheer number of hours that would be required to maintain this schedule, which would consistently be more than 120 hours per week of driving time, approach physical impossibility. For that additional reason, the Court finds that the statements of the first and second male cooperators are not reliable to establish that this case “involves a minor victim.”

The next government’s next argument to detain Mr. Abrego pending trial is that he is a flight risk because he 1) faces a lengthy prison sentence, 2) If he’s released and not immediately detained by ICE, he will flee to avoid deportation, and (3) Abrego is a gang member who is “used to living in the shadows,” and therefore has more resources to aid him in fleeing.

The severity of a potential sentence is not a determinative consideration…In the scheme of federal crimes, transportation of undocumented immigrants is not among the charges that might immediately come to mind as a serious charge.

The judge then slams the DoJ for exaggerating the potential sentence Mr. Abrego is facing:

While the government contends that the potential penalty in this case is up to 90 years in prison, the cases relied on the by the government do not support that Abrego faces a sentence of that magnitude. [O]f the approximately 14 convictions of human smuggling in this district since May 2005, the sentences ranged from time served or probation up to 64 months, with an average sentence of 12 months. This is consistent with data published by the United States Sentencing Commission showing that in FY 2024 the “average sentence for alien smuggling was 15 months.” This is further bolstered by the testimony of Special Agent Joseph that the first male cooperator was serving a 30-month sentence for human smuggling.

As far as the DoJ argument that he’ll flee because he could be immediately detained by ICE, the just says:

In this particular case, the Court finds that the undisputed ICE detainer obviates any serious risk of flight because there is no suggestion that, if Abrego is released, the action taken by the government will be anything other than detaining him in ICE custody pending further removal proceedings. In a case similar to this, a sister court in Tennessee held that when there is undisputedly an ICE hold against a defendant, the government cannot satisfy its threshold burden under § 3142(f)(2)(A) to show that there is a serious risk the defendant will flee because “[a]s long as [a defendant] remains in the custody of the executive branch, albeit with ICE instead of the Attorney General, the risk of his flight is admittedly nonexistent.”

And regarding the government’s argument that his “new found celebrity” and “gang connections” will give people a reason to help him evade law enforcement, the court says:

Although the government alleges that Abrego’s “new-found prominence puts him in a unique (and unignorable) position to potentially use the sympathy of misguided strangers to further his evasion of the United States government, were he to be released”, the government offered no evidence from which the Court can conclude or even assess the likelihood that Abrego would actually do so. Of equal consideration are the arguments of Abrego’s counsel that he is one of the most recognizable people in the news right now and that he is just as likely to be turned in as to be given refuge. In the absence of specific, concrete evidence, the Court declines to overlook the requirements of the Bail Reform Act in speculation of the impact of Abrego’s current notoriety.

The judge also addresses the government’s contention that Abrego is a member of MS13:

The government’s evidence that Abrego is a member of MS-13 consists of general statements, all double hearsay, from two cooperating witnesses: the second male cooperator and N.V. Those statements are, however, directly inconsistent with statements by the first cooperator. In interviews, the second male cooperator, whose general unreliability the Court addressed above, stated broadly to Special Agent Joseph that Abrego was “familial” with purported gang members. Other than this vague statement, there is no evidence of when these interactions occurred or in what context (other than as general greetings), how the second male cooperator determined those other unidentified individuals to be known gang members, or precisely how some perceived interaction between Abrego and other unidentified individuals substantiates gang membership.

Cooperating witness N.V. stated to Special Agent Joseph that she “believed” Abrego to be a member of MS-13. N.V. is a 20-year-old female individual who gave interview statements, but not sworn testimony, of her interactions with Abrego from more than five years earlier, when she was 14 or 15 years old. She has been previously compensated for providing information to law enforcement but is not receiving compensation in this case. NV’s family is also affiliated with the 18th Street or 18 Barrio gang. Other than N.V.’s general belief about Abrego’s gang membership, no other testimony was offered of when, in what context, how, or why N.V. came to arrive at that belief.

Contrary to the statements of the second cooperator and NV, the first male cooperator told Special Agent Joseph that, in ten years of acquaintance with Abrego, there were no signs or markings, including tattoos, indicating that Abrego is an MS-13 member. This statement specifically repudiates any outward indicia that Abrego belongs to MS-13, in stark contrast to the non-specific second cooperator’s and N.V.’s feelings that Abrego may belong to MS-13. Given these conflicting statements, the government’s evidence of Abrego’s alleged gang membership is simply insufficient.

The judge also addresses the government’s “evidence” that Mr. Abrego is just an all around bad guy. First, they point to a domestic Temporary Restraining Order from five years ago. The judge points out that the order was dropped. Next, the government says Mr. Abrego is into guns - but the testimony about that is hearsay, and comes from a changed interview with one of the cooperators that sometimes he’d sell guns to Mr. Abrego. As far as the drug allegations:

Special Agent Joseph also testified that the second cooperator observed Abrego at least once transporting drugs. No other detail was provided. The Court notes, however, that during the November 30, 2022 traffic stop, the THP utilized a trained canine that did not alert to the possibility of any drugs in the vehicle. And there is no evidence that Abrego has any history of drug use or drug charges. These together refute the second cooperator’s hearsay statements.

She concludes as follows:

Abrego has strong family ties, as evidenced by the family members who attended the detention hearing. He also has strong ties to his community in Maryland, where he has lived for the past 13 years.

Prior to Abrego’s removal to El Salvador in March of 2025, he was employed as a sheet metal apprentice and is a member of the Sheet, Metal, Air, Rail, and Transportation (“SMART”) union. SMART is willing to continue Abrego’s apprenticeship and assist him with finding employment. CASA, which is an advocacy and resources membership organization that, according to the letter admitted as a defense exhibit, provides wrap-around services for immigrant communities and others, is available to provide employment, healthcare, and other social support services to Abrego. Abrego has no demonstrated history of physical, substance abuse, or mental health issues. Further, CASA has pledged to help with reestablishment of primary health care and mental health services for Abrego, if necessary.

The government alleges that Abrego is a long-time, well-known member of MS-13, which the Court would expect to be reflected in a criminal history, perhaps even of the kind of violent crimes and other criminal activity the government describes as typically associated with MS-13 gang membership. But Abrego has no reported criminal history of any kind. And his reputed gang membership is contradicted by the government’s own evidence as discussed above. While lack of a prior criminal history is not determinative, that fact weighs heavily in favor of release in this case given the claims of Abrego’s gang membership.

Lastly, the Court considers the potential danger that Abrego poses to any person or the community under 18 U.S.C. § 3142(g)(4) if he is released. For all the reasons stated above, the Court finds that this factor likewise supports release on conditions. Upon review of the evidence and taking all these factors into consideration, the Court finds the government failed to meet its burden of showing a properly supported basis for detention on grounds that Abrego poses an irremediable danger to the community or is likely not to appear. Rather, the Court finds that it can impose conditions of release to reasonably assure the safety of others and the community and Abrego’s appearance. Ultimately, conditions of release are not intended to guarantee community safety or ensure a defendant’s appearance, but rather serve to reasonably mitigate the risk of dangerousness and likelihood of nonappearance.

You can read the entire ruling here.

The judge has set a hearing for this Wednesday, June 25th, to discuss Mr. Abrego’s conditions for release.

~AG