Free Motion to Dismiss All Charges - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona RACHEL C. HERNANDEZ Assistant U.S. Attorney 40 North Central Avenue, #1200 Phoenix, Arizona 85004 Arizona State Bar No. 016543 Telephone (602) 514-7500 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
UNITED STATES OF AMERICA,

Case No.00-MJ-03304-LOA Plaintiff, v.
JESUS RICARDO LOPEZ-SILVA,

GOVERNMENT'S MOTION TO DISMISS (without prejudice) Defendant.

The United States, by and through undersigned counsel, hereby moves this Court to

16 dismiss this complaint against defendant Jesus Ricardo Lopez-Silva without prejudice and quash 17 any outstanding warrants. 18 On October 23, 2000, a complaint was filed against the defendant, an illegal alien, who

19 re-entered the United States after having been previously denied admission, excluded, deported, 20 and removed from the United States. This was in violation of 8 U.S.C. §§ 1326 (a) and 21 enhanced by (b)(1). An Arrest Warrant was issued for defendant the same day. Defendant has 22 never been apprehended. 23 Due to the age of the case, the case against the defendant should be dismissed without

24 prejudice in the interest of justice. "The government may, with leave of court, dismiss an 25 indictment, information or complaint. Fed.R.Crim.P. 48(a); See United States v. Gonzalez, 58 26 F.3d 459, 461-464 (9th Cir., 1995). The Court is required to grant considerable deference to the 27 government's request for a leave. Gonzalez, 58 F.3d at 461. The Court may deny the 28 government's motion to dismiss if the motion is "clearly contrary to the public interest." Id. at

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1 461-464. A motion to dismiss is "clearly contrary to the public interest" when the prosecution 2 moves to dismiss an indictment or complaint for purposes of harassment. Id. at 461. The 3 primary purpose of Rule 48(a) is to prevent the prosecution from charging, dismissing, and 4 recharging the defendant for harassment purposes. Id. 5 The Court, in determining whether to dismiss with or without prejudice, shall consider

6 each of the following factors: the seriousness of the offense, the facts and circumstances of the 7 case which led to the dismissal and the impact of a re-prosecution on the administration on the 8 administration of this chapter and on the administration of justice. 18 U.S.C. § 3162 (a)(1). The 9 decision to dismiss with or without prejudice is within the discretion of this district judge. 10 United States v. White, 864 F.2d 660, 661 (9th Cir. 1988). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 26th day of September, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Rachel Hernandez Rachel C. Hernandez Assistant U.S. Attorney

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