ATHENS COUNTY, Ohio — Two brothers currently held by U.S. Immigration and Customs Enforcement were brought to Athens County for a status conference Wednesday, where attorneys argued about the county prosecutor’s motion to dismiss their local criminal cases.
The brothers, Gregory Javier Laverde Laguna and Victor Laverde Laguna, are dual citizens of Colombia and Venezuela and are in the United States legally, seeking asylum.
Defense attorneys expressed concern that dismissing the criminal cases against Gregory Laverde Laguna and Victor Laverde Laguna without clearly exonerating them could leave their asylum cases in jeopardy.
They could “disappear to either Venezuela or Colombia once they hit an immigration court without ever having the opportunity to defend themselves,” Doug Francis, a public defender for Gregory Laverde Laguna, said at the Nov. 12 status conference.
In late September, Athens County law enforcement officers arrested the brothers as part of a sting operation targeting an alleged extortion scam.
On Oct. 29, local officials handed the brothers over to ICE, which transferred them to the Butler County Correctional Complex. Hours after the hand-off, the prosecutor’s office filed its original motions to dismiss the brothers’ cases. Those motions requested dismissals “with prejudice,” meaning the brothers could not be charged again over the same allegations.
During the course of the Nov. 12 status conference, in response to comments and questions from Athens County Court of Common Pleas judge Patrick Lang, the prosecutor’s office submitted revised motions to dismiss. The revised motions ask the court to dismiss the cases “without prejudice,” which would allow the cases to be brought against the brothers again.
The revised motions did not include language requested by defense attorneys that would exonerate the brothers.
Lang said he would issue a decision on the prosecutor’s amended motions to dismiss the brothers’ cases within 48 hours of the status conference’s conclusion. No decision had been filed by press time.
Request to exonerate the brothers
Defense attorneys have argued that information in discovery, not included in public court filings, demonstrates that neither Gregory Laverde Laguna nor Victor Laverde Laguna knew they were doing anything criminal.
Neither brother speaks English, and Gregory Laverde Laguna has Down syndrome, Francis said at the Nov. 12 status conference.
Francis said at the Nov. 12 conference that discovery shows that the brothers “answered a Facebook ad and picked up a box” without knowing the job was part of an extortion scheme.
The prosecutor’s office’s Oct. 29 motions to dismiss did not state the brothers were innocent, however. Instead, the prosecutor’s office said it wanted the cases dismissed because, “This matter is being referred to the FBI for further investigation.”
That language leaves the door open for an immigration court to view the dismissal in a light unfavorable to the brothers, Francis said at the Nov. 12 status conference.
“They might actually be determined to be essential witnesses in a prosecution against the bigger scheme” under investigation by the FBI, Francis said.
Prosecuting attorney Ashley Johnson did not respond directly to arguments about the brothers’ innocence or defense attorneys’ request to exonerate the brothers. She did not comply with the request to exonerate the brothers either through statements in the courtroom or in the amended motions she submitted to the judge.
Lang said there was no legal requirement for the prosecutor’s office to provide a statement exonerating the brothers, though the office could choose to do so if it wished.
“It seems that the state has essentially said no to your request, that they’re not going to give you that exoneration on record,” Lang told defense attorneys at the Nov. 12 hearing.
Scott Petroff, defense attorney for Victor Laverde Laguna, said in an interview with the Independent that it is “never too late to do the right thing.” He called on the Athens County Prosecutor’s Office to submit amended motions to the court which would exonerate the brothers.
Athens County Prosecutor Keller Blackburn did not respond to the Independent’s request for comment for this story.
Motions to dismiss
Petroff said he believes the prosecutor’s office would not have originally sought to dismiss the cases against the brothers with prejudice, meaning the cases could not be brought again, if it did not believe the brothers were innocent.
“I think there’s probably a reason why they were dismissing it with prejudice,” Petroff told the Independent. “I think that reason is because they recognize they screwed up, but they weren’t willing to make that admission in open court today [Nov. 12]. I can’t think of any other reason why they would dismiss this with prejudice.”
Athens County Court of Common Pleas Judge Patrick Lang pointed to “significant case law” at the Nov. 12 status conference which he said establishes that dismissals at the request of the state must generally be made without prejudice, meaning the brothers could be charged again for the same alleged crimes.
The only exception to that rule of thumb established in case law would be if the defendants’ “constitutional or statutory rights” would be violated by further prosecution, Lang said at the status conference.
The prosecutor’s office submitted amended motions to dismiss the cases without prejudice in response to Lang’s comments.
Francis asked Lang to consider dismissing the criminal cases with prejudice anyway. Francis argued that any potential further prosecution would in fact violate the defendants’ rights.
“If the case is dismissed without prejudice, our right to discovery stops, our right to figure out what actually happened that day stops, and there’s nothing we can do,” Francis said.
In contrast, dismissing the case with prejudice would allow the defense to “look at sealing and expungement,” Francis said.
Sealing and expunging the cases could help the brothers in their immigration cases, Petroff told the Independent.
While defense attorneys hope Lang will ultimately dismiss the criminal cases with prejudice, Petroff acknowledged that the judge has “limited information in front of him” and that, in many ways, his “hands are tied.”
Petroff said that puts “the onus on the prosecutor to do the right thing.”
“At least with Gregory, I think it would be very easy for them to say, ‘We didn’t realize that he was developmentally disabled when we made the arrest. We think that continued prosecution would violate his Fourth Amendment right, because there’s no way that he committed this offense,’” Petroff said.
“But then they’d have to admit they screwed up,” he added. “And I just don’t think that they are the kinds of people that are willing to do that.”
Johnson said at the Nov. 12 hearing, “The state stands by its motion as amended with the request to dismiss without prejudice, as this case has been referred to the FBI for further investigation.”
Still in ICE custody
ICE submitted immigration detainers for the brothers to the Southeast Ohio Regional Jail on Sept. 24, according to records obtained by the Independent.
On Oct. 28, SEORJ Warden Josh Vanbibber forwarded the detainers to Blackburn and Athens County Sheriff Rodney Smith and asked the two how they would like to proceed.
No further emails were obtained by the Independent’s request. Neither Blackburn nor Smith returned the Independent’s request for comment.
On Oct. 29, local officials handed the brothers over to ICE.
Petroff argued that action was unnecessary because detainers are not warrants — they’re requests that local authorities are not required to comply with. He also alleged the hand-off violated Lang’s order to hold the brothers on bond.
The court noted in Nov. 4 orders that the transfer to ICE appeared to contrast with its previous orders. The Nov. 4 orders directed the county prosecutor’s office to submit warrants to convey the Laverde Lagunas to the Nov. 12 hearing.
The prosecutor’s office complied, filing the warrants in each case Nov. 6. The warrants, as well as filings by Lang, directed that the brothers be brought to Athens County only for the duration of the Nov. 12 status conference. The brothers were then set to be returned to ICE custody.
Petroff told the Independent the brothers were handed back over to ICE after the status conference.
ICE continues to hold the brothers at the Butler County Correctional Complex, according to ICE records.
Both Victor Laverde Laguna and Gregory Laverde Laguna have immigration court hearings in Cleveland Nov. 18, according to online records available via the U.S. Department of Justice.
A show of public support
In Athens, at the Nov. 12 hearing, about 30 members of the public crowded the courtroom for the Nov. 12 status conference to support the Laverde Lagunas.
“I’m proud of the heart that the community is showing in the courtroom, and the fact that the defense attorneys are working so diligently to make sure that this case can be ended today and not come forward again because of a dismissal without prejudice,” one attendee, who declined to share their name, told the Independent.
Another attendee, Natalie Johnson, said she attended “to make sure that the two gentlemen who are detained know that the community has their back.”
Seth Langenkamp told the Independent he attended because “I am against people being deported, immigrants being deported.” He wanted to ensure the situation with the Laverde Laguna brothers was not heading toward “injustice,” he said.
Keri Johnson contributed reporting to this story.
Disclosure: Petroff has represented the Athens County Independent in cases involving public records access.
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