Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Rojo-Alvarado

United States District Court, W.D. Oklahoma

September 18, 2019




         On September 9, 2019, the Government filed a Motion to Dismiss Without Prejudice (Dkt. 23), asking the Court to dismiss the Indictment (Dkt. 1) against the Defendant pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure. The only reason given for the requested dismissal was that dismissal would be “in the interests of justice.”[1]

         The next day, the Defendant’s lawyer filed a Response to Government Motion to Dismiss Without Prejudice (Dkt. 24), stating that he “had no opportunity to have any consultation with the defendant” regarding the Government’s requested dismissal due to some significant developments.[2] Apparently, when defense counsel contacted the Oklahoma County Detention Center to arrange a meeting with his client and the court-appointed translator to discuss the Government’s motion and ascertain his client’s position on the requested dismissal, he learned his client had been “released directly into Immigration Customs Enforcement custody ‘last week’.”[3] Defense counsel was not informed of this action. Moreover, defense counsel accused the Government of attempting to “unilaterally . . . circumvent the provision of [the Speedy Trial Act, ] 18 U.S.C. §3161 et. seq.” by obtaining a dismissal of the indictment that will prevent the Speedy Trial Act’s 70-day deadline from running.[4] Because his client’s “inability to appear is squarely placed on the actions of the government, ”[5] he contended “[t]hese proceedings and this prosecution should be considered abandoned by the government [and] not simply abated or held in suspension until it suits them to start up again, if ever.” He has therefore requested dismissal with prejudice to refiling.

         Two days later, the Government filed an Amended Motion to Dismiss Without Prejudice (Dkt. 25) giving a more detailed explanation of the reason for the requested dismissal. On July 12, 2019, state law enforcement officers encountered the Defendant and arrested him under a bench warrant issued in 2012 for failure to appear in state court.[6] After his detention in the Oklahoma County Detention Center, Immigration and Customs Enforcement (ICE) agents placed an immigration detainer on the Defendant and referred the case to the U.S. Attorney’s Office for the Western District of Oklahoma.[7] Following the Defendant’s indictment and arraignment, U.S. Magistrate Judge Erwin held a detention hearing on September 4th, released the Defendant on bail under certain conditions, and sent the Defendant back to the Oklahoma County Detention Center to finish serving his state sentence. Acting under the jurisdiction of the U.S. Department of Homeland Security (DHS), ICE executed its detainer on September 6th and took the Defendant into custody for deportation to Mexico. On September 7th, the Defendant was deported. The U.S. Attorney’s Office has requested dismissal of the indictment without prejudice because DHS removed the Defendant back to Mexico. The U.S. Attorney’s Office does not wish to prosecute the Defendant in absentia or to suspend the prosecution.

         For the reasons stated below, the Government’s Amended Motion to Dismiss Without Prejudice (Dkt. 25) is GRANTED.


         Rule 48(a) of the Federal Rules of Criminal Procedure provides that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.”

         Although the rule contains a requirement that “leave of court” be obtained, it does not specify any particular standard-such as “for good cause shown”-for granting leave. While the phrase “obviously vest[s] some discretion in the court, ” the U.S. Supreme Court has never delineated “the circumstances in which that discretion may properly be exercised.”[8]

         At common law, however, the prosecutor had unbridled power to dismiss a case through entry of a nolle prosequi at any stage of the case.[9] When Rule 48(a) was first drafted, the Advisory Committee recommended adding a requirement that the prosecutor state his reasons for seeking a dismissal, which was the prevalent practice in state courts.[10]But when the Supreme Court promulgated the rule in 1944, it substituted the requirement that dismissal be obtained only by leave of court without any explanation of its reasons for doing so.[11] In a 1977 opinion, even the Supreme Court itself noted that “[t]he words ‘leave of court’ were inserted in Rule 48(a) without explanation.”[12]

         The only guidance the Supreme Court has provided was its suggestion in the footnote of an opinion that “[t]he principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection, ” and that a secondary object was to allow courts to consider public interest.[13] “To honor these purposes of the rule, ” the Tenth Circuit requires that “the trial court at the very least must know the prosecutor’s reasons for seeking to dismiss the indictment and the facts underlying the prosecutor’s decision.”[14] “[T]he court will not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest.”[15] This requirement is especially well-founded where the defendant concurs in the dismissal and the court’s only real concern is “whether the action sufficiently protects the public.”[16]

         Although the Government failed to set forth the reasons for dismissal in its initial motion, the amended motion cures the problem by stating that the Defendant’s deportation is the basis for the request. In view of that reason, it does not appear that the agreed-to dismissal fails to protect the public interest. Rather, the Government’s desire not to prosecute the Defendant in absentia advances the public’s interest in avoiding such defendant-less trials.

         The only question is whether dismissal should be with or without prejudice to refiling. Defense counsel argues for dismissal with prejudice because he believes the Government is seeking to suspend the prosecution to unilaterally circumvent the provisions of the Speedy Trial Act. On the other hand, the Government states it “is not . . . ‘suspending’ the prosecution” and argues that “[d]ismissal without prejudice is not a toothless sanction: it forces the Government to obtain a new indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on statute of limitations grounds.”[17]Neither side offers much authority in support of its arguments, but the Government does cite the case of United States v. Rojas, No. 6:18-cr-10048-JWB, 2018 WL 6696570 (D. Kan. Dec. 19, 2018).

         The Rojas case is factually and procedurally on point.[18] The Rojas court found one case helpful to its analysis, United States v. Alvarado-Velazquez, 322 F.Supp. 3d 857 (M.D. Tenn. 2018), and noted that the court’s decision about whether to dismiss with prejudice or without hinged upon whether the Government was operating in bad faith by moving to dismiss the indictment.[19] The Rojas court then found that “[g]ranting the government’s motion to dismiss without prejudice in the instant case is not manifestly against the public interest, ” particularly insofar as it would “resolve[] any conflict” presented by “pursuing concurrent criminal charges and immigration proceedings against an individual.”[20] It further found that “nothing in the current record lends itself to a conclusion that dismissal of the indictment constitutes an effort to harass Defendant or that the dismissal is otherwise ‘tainted with impropriety.’”[21] The Rojas court also found “there is no reason why that election [of deportation and dismissal of the indictment] by the government should confer immunity on Defendant for the alleged offense.”[22] The Rojas court believed “[t]he prospect of refiling obviously gives Defendant a disincentive to unlawfully reenter the country, [which] is not manifestly contrary to the public interest, ” and that “the statute of limitations protects Defendant against the government recharging the offense after an unreasonable period of time.”[23] Consequently, the Rojas court “conclude[d] that the circumstances d[id] not warrant dismissing the indictment with prejudice.

         Another judge within the Tenth Circuit found Rojas persuasive in the case of United States v. Rodriguez-Romo, No. 6:18-cr-10146, 2019 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.