Free Reply to Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD G. PATRICK Assistant U.S. Attorney Arizona State Bar No. 5148 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Veronica Cruz Cabrera, et. al., Defendants. Vigil's response to the United States' motion for relief from the Court's April 13, 2006 Order granting her Hyde Amendment motion begins with a faulty premise. At page 3 of her response, Ms. Vigil states that "[t]he prosecution's motion is based upon the claim that the motion for fees and costs was untimely filed, thus depriving the Court of jurisdiction and rendering the order void". In fact, the United States argued that "[w]ithin the Ninth Circuit, the thirty-day timing rule is strictly applied", citing Arulampalam vs. Gonzales, 399 F.3d 1087 (9th Cir. 2005). Later, the United States was quite clear. "Because the Court's February 2005 dismissal order was both final and not appealable", her March 13, 2006 Hyde Amendment motion "was thus untimely and, based upon the Ninth Circuit's strict application of the thirtyday rule, should have been denied"1 . Motion, Page 4.
REPLY TO VIGIL'S RESPONSE TO UNITED STATES' MOTION FOR RELIEF FROM APRIL 13, 2006 ORDER

CR-04-00874-PHX-RGS-ALL

Vigil asserts that the United States "overlooked" the Supreme Court's decision in Scarborough v. Principi, 541 U.S. 401 (2004), an odd statement since both Arulampalam v. 26 Gonzales, 399 F.3d,1087 (9th Cir. 2005) and United States v. Hristov, 396 F.3d 1044 (9th Cir. 2005), which were cited and relied upon by the government discuss the case. Since the United 27 States did not assert that the 30-day EAJA (and Hyde Amendment) rule was jurisdictional, the Scarborough ruling was not germane. In her response, Vigil deals with Arulampalam the only 28 way she can- she ignores it.

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As to the Court's February 17, 2005 dismissal order, the United States argued that it was

2 both final and not appealable. In response, Ms. Vigil does not address, and thus does not 3 dispute, that the order was not appealable. Was that Order final? Where, as here, the

4 government voluntarily dismisses pending charges, "a citizen suffers no restraints on his (her) 5 liberty and is [no longer] the subject of public accusation". United States v. MacDonald, 456 6 U.S. 1, 9 (1982) (quoting United States v. Marion, 404 U.S. 307, 321 (1971)). In its motion, the 7 United States cited Briseno v. Ashcroft, 291 F.3d 377 (5th Cir. 2002) and Bryan v. Office of 8 Personnel Management, 165 F.3d 1315 (10th Cir. 1999) for the proposition that a voluntarily 9 dismissal triggered EAJA's thirty-day clock and that an EAJA application beyond that 30 day 10 window was untimely2. Curiously, Vigil also chides the government for relying on United States 11 v. Gardner, 23 F. Supp.2d 1283 (N.D. Okla. 1998) for the proposition that a dismissal without 12 prejudice by the government was a final judgment for purposes of a Hyde Amendment claim. 13 In Gardner, the government made the opposite argument, but the Court ruled that finality was 14 present. The precedential value of the case is what the Court held, not what the government 15 argued at the time. 16 In her discussion of the finality issue, Vigil relies on cases such as Wakefield v.

17 Thompson, 177 F.3d 1160 (9th Cir. 1999) for the proposition that dismissals without prejudice 18 generally do not constitute final orders. In that case, the issue was finality for purposes of an 19 appeal under 28 U.S.C §1291. As the government noted in its original motion, the definition of 20 final judgment under 28 U.S.C. §2412(d)(2)(G) is an unusual definition. A general rule for 28 21 U.S.C. §1291 purposes does not translate into a general rule for Section 2412(d)(2)(G) purposes. 22 Indeed, the Wakefield court noted its United States v. Lee, 786 F.2d 951 (9th Cir. 1986) 23 precedent [relied upon by the government in it's motion] for the proposition that "an order which 24 effectively sends a party out of court is appealable (and hence final)" Id. at 956. Here, the 25 Court's February 17, 2005 Order sent Ms. Vigil out of court. See United States v. MacDonald, 26 27 Ms. Vigil focuses on the jurisdictional language in Briseno. The United States did not 28 rely on Briseno for that proposition. 2
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1 456, U.S. 1, 10 (1982) (Army's voluntary dismissal of charges left citizen "free" as though no 2 charges had been brought). 3 In its motion, the United States devoted two and half pages to the argument that the

4 Court's February 10, 2006 Order granting Vigil's motion to dismiss with prejudice was void for 5 lack of jurisdiction. In response, Vigil makes two abbreviated points. First, at footnote 2, she 6 labels "unsubstantiated and false" the government's statement that she misled the Court into 7 entering the order. In the United States' motion, it argued that "[i]n her January 19, 2006 motion 8 to dismiss the indictment with prejudice, Vigil did not make any showing, or suggestion at all, 9 as to why the Court had jurisdiction to entertain her motion". Motion, page 5, n. 6. Vigil's 10 January 19, 2006 motion speaks for itself-the Court is invited to review it for Vigil's citation to 11 any rule, statute, constitutional provision or any jurisdictional basis for the Court to entertain it. 12 Next, Vigil claims that "[t]he very fact that the Court entered a subsequent order dismissing the 13 case with prejudice supports the conclusion that the order dismissing the case without prejudice 14 was not a final order". Response, page 8. That argument is remarkable for at least two reasons. 15 First, had Vigil not filed her January 2006 motion, the February 17, 2005 Order would have been 16 the last order on the docket as to her. Accepting Vigil's argument, that order, despite no activity 17 thereafter as to her, would never have been final. Second, and more significantly, "the exercise 18 of jurisdiction in a case is not precedent for the existence of jurisdiction". Indian Oasis -

19 Baboquivari Unified School District v. Kirk, 91 F.3d 1240, 1243 (9th Cir. 1996) (citing United 20 States v. Los Angeles Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)); see Leisnoi, Inc. v. 21 United States, 170 F.3d 1188, 1192 n. 7 (9th Cir. 1999)("The district court, however, did not 22 discuss or rule on the question of initial jurisdiction, and its silent exercise of such jurisdiction 23 therefore does not constitute authority on that issue"). 24 Other than state that the Court did rule in January 2006 on her motion to dismiss with

25 prejudice, Vigil makes no attempt to demonstrate the Court's jurisdiction to do so. For all the 26 reasons, and based upon the authorities cited, set forth at pages 5-7 of the government's 27 memorandum in support of the motion for relief from the April 13, 2006 Order, the Court's 28 February 10, 2006 Order dismissing the case as to Vigil with prejudice is void for lack of 3
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1 jurisdiction. "[T]he law requires a court to examine its own subject matter jurisdiction in 2 criminal cases as well as civil cases". In re Sealed Case, 131 F.3d 208, 210 (D.C. Cir. 1997). 3 Once the Court entered its final order of February 17, 2005 as to Vigil, it had no ongoing 4 jurisdiction as to her. See generally Carlisle v. United States, 517 U.S. 416 (1996)(holding that 5 a district court lacks authority to grant an untimely motion for judgment of acquittal); United 6 States v. Morales, 328 F.2d 1202 (9th Cir. 2003)(district courts lack authority to reconsider 7 sentencing orders); United States v. Feeny, 841 F.2d 1000 (9th Cir. 1988)(district court had no 8 jurisdiction to entertain challenge to post-sentence report); United States v. Taylor 2001 WL 9 34456768 (E.D. Va. 2001)(defendant's post-conviction motion to dismiss count of indictment 10 denied for lack of jurisdiction). 11 As the Court noted in In re Sealed Case, "[t]he indictment, like the complaint in a civil

12 case, simply begins the application of an existing realm of subject matter jurisdiction to the facts 13 and parties of a specific case". 131 F.3d at 360. After her February 17, 2005 dismissal, Vigil 14 "was legally and constitutionally in the same posture as though no charges had been made"3. 15 United States v. MacDonald, 456 U.S.1, 10 (1982). Following the expiration of the applicable 16 appeal period (if any), the Court lost jurisdiction and any authority to entertain any request for 17 relief by Ms. Vigil. Cf. Rule 54(b), Fed. R.Civ. P. (following entry of final order as to one but 18 not all parties, action is terminated as to that party); accord, Smith v. Massachusetts, 543 U.S. 19 462, 475 (2005)(Ginsburg, J., dissenting). Because the Court's February 10, 2006 Order was 20 issued without jurisdiction, it is void. Thus, the Court's exercise of its Hyde Amendment 21 authority in March and April 2006, premised upon its February 10, 2006 Order, was clearly a 22 mistake of law and its April 13, 2006 Order should be vacated4. 23 24 "Dismissal without prejudice is not ( ) toothless ( ): it forces the government to 25 obtain a new indictment if it decides to reprosecute". United States v. Taylor, 487 U.S. 326, 342 (1988). Any new indictment after February 17, 2005 would have meant Ms. Vigil would be a 26 defendant in a new, and different, criminal case. 27 Once again, Vigil cannot assert that her 2006 Hyde Amendment claim would be timely based upon a final, non-appealable February 17, 2005 dismissal order. Arulampalam v. 28 Gonzales, 399 F.3d 1087 (9th Cir. 2005). 4
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Ms. Vigil, via her Hyde Amendment motion, sought access to public funds. Protection

2 of the public fisc required her to act with "scrupulous regard" for the requirements of the Hyde 3 Amendment. United States v. Mackby, 261 F.3d 821, 828 (9th Cir. 2001). Her March 13, 2006 4 Hyde Amendment motion was woefully late and the Court's April 13, 2006 Order granting her 5 Hyde Amendment motion should be set aside. While the amount of her request is arguably 6 modest, the monetary value of her claim is not the only matter at issue. Because of the Court's 7 April 13, 2006 Order, reporting requirements to the Office of Professional Responsibility, United 8 States Department of Justice, have been triggered. 28 C.F.R. §0.29c(b); U.S. Atty's Man. 1-4. 9 120. Accordingly, the United States' interest in this matter relates to the professional reputation 10 of government counsel as well as the monetary amount at issue. 11 For the reasons set forth in the United States original motion and as supplemented herein,

12 the Court should vacate its April 13, 2006 Order. 13 14 15 16 S/Richard G. Patrick 17 18 19 20 21 22 23 24 25 26 27 28 RICHARD G. PATRICK Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona DATED this11th day of September, 2006.

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CERTIFICATE OF SERVICE I hereby certify that on September 11, 2006, I served the attached document by mail to

3 the following, who are not registered participants of the CM/ECF System: 4 Natman Schaye Chandler & Udall, LLP 5 Attorneys at Law 33 North Stone Avenue, Suite 2100 6 Tucson, AZ 85701-1415 7 s/ E. Bender Office of the U.S. Attorney 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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