DREAMer and DACA-Applicant Octavio Castaneda Flores Free After Eight Months Nonbondable in Maricopa County Jail
Octavio Flores with members of his family, hours after being released
The first time I met Octavio Castaneda Flores, he was in county stripes, his hands cuffed to a desk where he sat in the visiting room of Durango Jail.
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It was January, and already he had spent four months in stir, nonbondable on eight class four felonies involving forgery and ID theft.
Octavio, now 28, would spend four more months in jail, before he was finally released this week, after the prosecutor in the case moved to dismiss all remaining charges.
Wednesday, I saw him as a free man, surrounded by his children, his wife Brenda, and their newborn Michael.
He had missed the birth of his youngest son. Nevertheless, he was all smiles.
"It feels great to have my family back," he told me, as Michael slept the sleep of the innocent in Brenda's arms. "I can't explain it. I don't have the words to explain it."
Brenda visited him regularly during the more than eight months he was in jail, but she didn't tell the children the truth. The young couple didn't want the kids to see their father handcuffed and in stripes or think him a criminal.
Octavio talked to the kids via phone, and Brenda told them their dad was away, on a job out of state. Meanwhile, she struggled through the situation as best she could, relying on her family for help.
"It was very hard going through labor and doing all that without him," she said. "In the past, I've always had him to be there to help me out with the whole process."
The baby was born May 30. She took Michael with her to visit Octavio in jail a couple of days later.
"I had just gotten out of the hospital," she explained, her voice weary. "But I really wanted him to see the baby. So I took him."
Octavio's case was featured in my February cover story on a discriminatory legal mechanism that lands undocumented workers like him in jail, jacked up on forgery charges.
Under a constitutional amendment passed by Arizona voters in 2006, those presumed to be guilty of a class four felony or above and presumed to be in the country illegally are denied bail.
So if the Maricopa County Attorney's Office hits an undocumented person with a class four felony charge -- or as is usually the case, multiple class four felony charges -- for working with a false Social Security Number or identity, that individual has two choices.
He or she can stick it out in Sheriff Joe Arpaio's gulags, sometimes for as long as eight or nine months, awaiting trial; or plead guilty to a felony that will likely make them removable from the United States once they are turned over to U.S. Immigration and Customs Enforcement.
Octavio was brought to Arizona from Mexico when he was 15.
He went to high school in the Valley, and other than using someone else's Social Security Number to work for five years at Ashley Furniture, he's never broken the law.
Indeed, his application for President Obama's Deferred Action for Childhood Arrivals program has been held up mainly because his charges with the county have been pending.
What got Octavio in trouble?
He ran afoul of two state employees: Sally Cuellar, an investigator with the Arizona Department of Economic Security and Chris Oberly, a detective with the Arizona Department of Transportation.
Oberly you may recall as the guy involved in the wrongful arrest and attempted conviction of U.S. citizen Briseira Torres on bogus forgery charges.
Oberly and the county attorney's office contended that Torres' Arizona birth certificate had been canceled. It had not been.
Torres' attorney Delia Salvatierra succeeded in getting the case remanded back to the grand jury. As a result, the prosecutor moved for dismissal.
Salvatierra's colleague Dori Zavala ended up being Octavio's lawyer after he and his wife spoke to another local attorney, who told them Octavio didn't stand a chance.
All Octavio could do, this lawyer said, was plead guilty to a felony and be deported by ICE.
Octavio and Brenda then sought out Zavala. She made no guarantees, but promised to fight for them.
And fight she did. In fact, she went to war.
During the course of Octavio's imprisonment, there were numerous legal skirmishes, some wins, some losses.
Zavala scored Octavio's freedom over the Christmas holidays when Oberly failed to show for a hearing. But Octavio had to return to jail when the judge didn't rule in his favor at a subsequent hearing.
At one point, Zavala got the case sent back to the grand jury.
The county attorney had the grand jury re-indict Octavio.
At one point, prosecutor W. Tattnall Rush alleged historical priors on Octavio that belonged to someone else.
Later, Rush claimed it was a mistake.
Octavio had been using the Social Security Number of an imprisoned felon to work.
Oberly discovered this after he had been tipped off by Cuellar about Octavio. Oberly arrested Octavio at his workplace in September.
Cuellar and Oberly were email pals and regularly shared info. Oberly sometimes would get names and Social Security Numbers from Cuellar on all employees for certain companies.
Other times, he would send her a name and/or a SSN to check its employment history.
Unsolicited, Cuellar sent Oberly info on Octavio. Back in 2008, Brenda had applied for benefits from DES for the couple's U.S. citizen kids. Since Octavio was the breadwinner of the house, DES needed his employment info. He provided a letter from Ashley Furniture verifying this.
At the bottom of the letter was handwriting indicating that Octavio was using the name "Luis Franco" for work. Franco is currently in an Arizona prison on a drug violation
There was never any indication of fraud related to DES benefits. An authorization that DES required Octavio to sign (in his own name) indicated DES would not "release this information to any other person or agency outside of DES or its agents."
It took four years, but someone finally took notice of the scrawl indicating that Octavio was working under a different identity. Perhaps because no benefits fraud was involved, Cuellar emailed the tip to Oberly.
Zavala used several arguments in her battle to free Octavio. In one, she maintained that evidence in Octavio's case had been obtained improperly, violating state and federal laws (as well as DES regulations) protecting such data from disclosure.
Therefore, the state had violated the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure.
She claimed that, "Ms. Cuellar's release of confidential information was illegal under both state and federal statutes."
All other evidence obtained after the fact was "ill-gotten fruit," and should be suppressed, she argued, under what legal beagles refer to as the "exclusionary rule."
Superior Court Judge Robert Gottsfield dispensed with Zavala's other arguments. But on the claim regarding the DES data, he concurred.
"The court however does agree with defendant's argument," wrote Gottsfield, "and has granted its motion to suppress evidence based on illegal search and seizure of confidential DES records."
The judge continued:
"This court specifically holds that it was improper and a violation of defendant's Fourth Amendment rights for a supervisor at DES to take confidential information from a DES welfare file, for defendant's U.S. citizen children, and send that information unsolicited and unrequested to a detective with the Office of Inspector General, ADOT, through email. This court adopts the reasoning and authorities cited by the defendant on this issue."
Deputy County Attorney Rush responded to Gottsfield's ruling by moving to dismiss the charges.
In court on Monday to discuss the matter, he said that the state was "considering" an appeal of the judge's ruling.
After the dismissal, Zavala commented on the importance of the judge's decision.
"DES is the gatekeeper of a lot of confidential information for the entire state," Zavala told me. "I think it was important to have that court ruling, saying that the way that this investigation began was improper, and the way DES was acting was violating individual constitutional rights."
Is it possible that the judge's ruling could have implications beyond this case, since investigators from other agencies, such as the MCSO, apparently obtain information from DES without a warrant?
"I definitely think more attention needs to be paid to how DES is releasing information," she said. "In the [MCSO raids of businesses], DES gave [MCSO] entire wage reports for entire companies that list the name and Social Security Number of every employee, including citizens."
DES spokeswoman Nicole Moon would not comment on the specific allegations in Octavio's case, however she insisted that DES was doing everything by the book.
"[W]e assure you that we endeavor to comply with all applicable state and federal law," she said via email.
"Different DES programs are covered by different state and federal laws," she wrote. "As a result, they require different rules."
When an agency requests information from DES, then, "the department evaluates that request" versus applicable federal and state statutes.
But after reading over reams of emails between Oberly and Cuellar, where otherwise confidential information is exchanged casually and without a second thought, Moon's statements are not reassuring.
I'm heartened by Zavala's win in Octavio's case, though it came at the loss of eight months of this young man's life and separation from his family when his family and his wife needed him.
The lesson for those who end up in similar circumstances, and perhaps for all of us, is: Better an attorney like Zavala who will fight, rather than one who just takes your money and tells you to plead to the lead.
I can only hope the Spanish-language media in this county is communicating that message to the undocumented and their loved ones.
These cases are not hopeless. They can be won.
But in order to win, you have to fight. There is no other way.
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