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

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CHANDLER & UDALL, LLP
ATTORNEYS AT LAW 33 NORTH STONE AVENUE, SUITE 2100 TUCSON, ARIZONA 85701-1415 Telephone: (520) 623-4353 Fax: (520) 792-3426 (Fax) [email protected]

Natman Schaye PCC# 51156, SBN 007095 Attorneys for Defendant Cherie Vigil UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. CHERIE VIGIL, et al., Defendant. Assigned to: The Hon. Roger G. Strand NO. CR 04-0874-PHX-RGS REPLY TO PROSECUTION'S RESPONSE TO MOTION FOR ORDER OF DISMISSAL WITH PREJUDICE

Cherie Vigil, through counsel, submits her memorandum in reply to the prosecution's opposition to her Motion for Order of Dismissal with Prejudice. RESPECTFULLY SUBMITTED this seventh day of February 2006. CHANDLER & UDALL, LLP

By s/Natman Schaye Natman Schaye Attorneys for Defendant Cherie Vigil

Case 2:04-cr-00874-RGS

Document 109

Filed 02/07/2006

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CHANDLER & UDALL, LLP
33 NORTH STONE AVENUE, SUITE 2100

CERTIFICATE OF SERVICE I hereby certify that on February 7, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jose S. Padilla Post Office Box 25128 Phoenix, Arizona 85002 Mary Beth Pfister Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 I further certify that on February 7, 2006, I served the attached document by electronic transmission and caused it to be hand-delivered on February 8, 2006 to the following, who is not a registered participant of the CM/ECF System: Honorable Roger G. Strand United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 57 Phoenix, Arizona 85003-2156

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TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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By s/Sharon Hardin

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CHANDLER & UDALL, LLP
33 NORTH STONE AVENUE, SUITE 2100

MEMORANDUM OF POINTS AND AUTHORITIES The prosecution concurs with Ms. Vigil's motion in stating that co-defendant Melissa Fernandez, not Ms. Vigil, committed the crimes with which Ms. Vigil was charged. The prosecution claims, however, that Ms. Vigil did not object to the prosecution's motion to dismiss without prejudice and that, since Ms. Vigil is not currently under indictment, the issue is moot. (Response at 2). First, prior to the prosecution's filing of the motion to dismiss, Assistant United States Attorney Mary Beth Pfister informed counsel undersigned that she was unwilling to agree to a dismissal with prejudice until Ms. Fernandez admitted to the commission of the crimes and was sentenced. Counsel undersigned therefore refrained from objecting to the dismissal being without prejudice and instead chose to wait until after Ms. Fernandez was sentenced. Secondly, this issue is not, as the prosecution claims, moot. (Response at 2). The Court has not entered judgment pursuant to Rule 32(k)(2), Federal Rules of Criminal Procedure, which, in pertinent part, requires: If the defendant is . . . entitled to be discharged, the court must so order. The judge must sign the judgment and the clerk must enter it. An order dismissing an indictment without prejudice is not a final judgment. See United States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989). Should another indictment be filed against Ms. Vigil based on the same allegations, the prosecution would undoubtedly argue that the new indictment was not barred by this Court's previous order dismissing the case without prejudice. The prosecution would clearly prevail on this point. See, e.g., Cohen v. United States, 366 F.2d 363, 368 (9th Cir. 1966). The Supreme Court recently recognized, "The primary meaning of 'dismissal without prejudice', we think, is dismissal without barring the plaintiff from returning later, to the same court, with the same underlying claim." Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001). -3Case 2:04-cr-00874-RGS Document 109 Filed 02/07/2006 Page 3 of 5

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TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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CHANDLER & UDALL, LLP
33 NORTH STONE AVENUE, SUITE 2100

Cherie Vigil was indicted based solely on records from the Arizona Department of Transportation, Motor Vehicle Division. Had the government examined those records with even a modicum of care, Ms. Vigil would have never been arrested or charged. The interests of justice entitle her to the assurance that these charges will never again be brought against her. It is therefore respectfully submitted that this Court enter final judgment and dismiss the case against Ms. Vigil with prejudice. RESPECTFULLY SUBMITTED this seventh day of February 2006. CHANDLER & UDALL, LLP

By s/Natman Schaye Natman Schaye Attorneys for Defendant Cherie Vigil

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TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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CHANDLER & UDALL, LLP
33 NORTH STONE AVENUE, SUITE 2100

CERTIFICATE OF SERVICE I hereby certify that on February 7, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jose S. Padilla Post Office Box 25128 Phoenix, Arizona 85002 Mary Beth Pfister Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 I further certify that on February 7, 2006, I served the attached document by electronic transmission and caused it to be hand-delivered on February 8, 2006 to the following, who is not a registered participant of the CM/ECF System: Honorable Roger G. Strand United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 57 Phoenix, Arizona 85003-2156

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TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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By s/Sharon Hardin

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