Searching over 5,500,000 cases.


searching
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. Cibrian-Lopez

United States District Court, N.D. Iowa, Western Division

July 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MANUELA CIBRIAN-LOPEZ, Defendant.

          ORDER REGARDING THE DEFENDANT'S MOTION FOR ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED, THE PROSECUTION'S RULE 12(b)(1) MOTION, AND THE DEFENDANT'S MOTION FOR LEAVE TO WITHDRAW MOTION

          MARK W. BENNETT, U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA

         I. INTRODUCTION

         This case is before me, first, on defendant Cibrian-Lopez's March 1, 2018, Motion For Order To Show Cause Why This Case Should Not Be Dismissed (Motion To Dismiss). In support of her Motion To Dismiss, Cibrian-Lopez argued that, because she had been granted bail pending trial, but then held in Immigration and Customs Enforcement (ICE) custody pending deportation proceedings, the executive branch was required to decide between deporting her in administrative proceedings or pursuing the criminal prosecution, but it could not pursue both in tandem. Subsequently, however, Cibrian-Lopez was detained pending trial on the federal criminal charges against her, and further proceedings have not changed her detention status. Under these circumstances, it appeared to me that Cibrian-Lopez's Motion To Dismiss was likely moot. Therefore, by Order filed June 12, 2018, I informed the parties that, unless any party filed an objection not later than June 19, 2018, Cibrian-Lopez's Motion To Dismiss would be denied as moot.

         On June 18, 2018, Cibrian-Lopez filed a Notice Of No Objection, stating that she did not object to denial of her Motion To Dismiss as moot. On the other hand, that same day, the prosecution filed a Supplemental Brief objecting to denial of Cibrian-Lopez's Motion To Dismiss as moot. The prosecution conceded that it was unusual for it to argue that a defendant's motion was not moot, but it argued that Cibrian-Lopez's Motion To Dismiss falls within the exception to mootness for a claim that is “capable of repetition, yet evading review.” Because the mootness of Cibrian-Lopez's Motion To Dismiss was in dispute, by Order filed June 19, 2018, I set a hearing on the mootness issue for June 27, 2018. Prior to the hearing, Cibrian-Lopez filed a Response to the prosecution's Supplemental Brief. At the hearing, I reserved ruling on the mootness question and requested further clarification of the parties' positions.

         On July 2, 2018, Cibrian-Lopez filed a Notice Of Intent To Plead Guilty and the second motion now before me, her Motion For Leave To Withdraw Motion For Order To Show Cause Why This Case Should Not Be Dismissed And Waiver (Motion To Withdraw). On July 3, 2018, the prosecution filed the third motion now before me, its Pretrial Motion Requesting A Decision On The Merits (Rule 12(b)(1) Motion), seeking a ruling on the issues raised in Cibrian-Lopez's Motion To Dismiss, pursuant to Rule 12(b)(1) of the Federal Rules of Criminal Procedure. On July 9, 2018, Cibrian-Lopez pleaded guilty to the two counts of the Indictment against her before United States Magistrate Judge Kelly K.E. Mahoney.

         II. LEGAL ANALYSIS

         The analysis of the proper disposition of the three motions now before me is interwoven. This interweaving is clear, if I begin my analysis with the prosecution's Rule 12(b)(1) Motion.

         A. The Prosecution's Rule 12(b)(1) Motion

         In its Rule 12(b)(1) Motion, the prosecution argues that, under the circumstances presented here, I should address the issue raised in Cibrian-Lopez's Motion To Dismiss, because that issue can be decided without a trial and because there is no good cause to defer ruling on the issue.[1]

         I agree with the prosecution that the issue raised by Cibrian-Lopez in her Motion To Dismiss satisfies the requirement to be considered on a Rule 12(b)(1) motion, that is, that the issue is one on which “‘trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity' of the motion.” United States v. Turner, 842 F.3d 602, 604-05 (8th Cir. 2016) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). The facts at issue in Cibrian-Lopez's criminal charges have nothing to do with the facts at issue in her challenge to parallel prosecution on criminal charges and the government's pursuit of administrative removal. On the other hand, I conclude that the second requirement for a Rule 12(b)(1) motion, which is that there is no “good cause to defer” a ruling, id. at 605, depends upon whether or not the issue raised by Cibrian-Lopez is, in fact, moot. Specifically, if the issue is moot, there is good cause to defer a ruling and no good cause to decide the issue at this time. Therefore, I turn to the “mootness” issue.

         B. Whether The Motion To Dismiss Is Moot

         1. Arguments of the parties

         The prosecution argues that the issue raised in Cibrian-Lopez's Motion To Dismiss falls within the exception to mootness for a claim that is “capable of repetition, yet evading review.” The prosecution argues that the pretrial period was too short to allow full litigation of the issue. The prosecution also argues that examples of scenarios in which the issue could resurface in this case or as to Cibrian-Lopez include the same or different counsel in this criminal case raising the issue at a later juncture; Cibrian-Lopez asserting the issue in a § 2255 proceeding alleging ineffective assistance of counsel or unlawful detention; or Cibrian-Lopez asserting the issue in a subsequent immigration court proceeding. The prosecution also argues that Cibrian-Lopez could assert, post-conviction, that she cannot be removed, because the government elected criminal prosecution over administrative removal; if she were released on bond in this criminal case and subjected to administrative removal, Cibrian-Lopez would likely argue that the government is forever barred from pursuing this criminal case because it elected to pursue administrative removal; and if she returns to the United States after removal, Cibrian-Lopez would likely argue, again, that the government should be forced to elect between pursuing administrative removal or criminal prosecution for illegal reentry.

         On the other hand, Cibrian-Lopez argues that it appears that the government has elected to proceed with criminal prosecution and forego her removal until after completion of her prosecution and possible sentence, so her Motion To Dismiss is moot. In her Motion For Leave To Withdraw, Cibrian-Lopez reiterates that she is now in the custody of the United States Marshals Service pursuant to the Bail Reform Act in accordance with a May 25, 2018, detention order by United States Magistrate Judge Mahoney; that she has not appealed Judge Mahoney's detention order; that the Department of Homeland Security is presently taking no steps to effectuate her removal during the pendency of her criminal case; that she has filed her Notice Of Intent To Plead Guilty; that her change of plea hearing has been set for July 9, 2018 (and she has now entered a guilty plea); that she has been fully advised of her rights; and that she has not contended that the United States may not proceed with effectuating her removal pursuant to the Immigration and Nationality Act after the completion of her criminal case and her service of a criminal sentence, and she expressly waives any purported right to assert such a claim in the future. If the prosecution ...


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.