The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTIONS TO RECONSIDER
On August 11, 2009, the Court entered an Order granting in part and denying in part the Defendant Cesar Martinez Zavala's (the "Defendant" or "Martinez-Zavala") motion to dismiss the indictment. Both the Government and the Defendant now move for reconsideration of the Court's August 11, 2009 order. For the reasons explained below, both the Government's and the Defendant's Motions to Reconsider are DENIED.
The Court discussed the factual background of this case in detail in its August 11, 2009 Order ("Order"). The Court hereby incorporates here the factual background as set forth in its earlier Order.*fn1
The Court's Order granted the Defendant's motion to dismiss the indictment insofar as he sought to preclude the Government from relying on the February 3, 2003 removal order to support a conviction under 8 U.S.C. § 1326. The Court found that the Defendant's due process rights were violated because the Immigration Judge ("IJ") at his initial removal proceeding failed to explain to him the differences between pre-conclusion and post-conclusion voluntary departure, and failed to inform him of his apparent eligibility for pre-conclusion voluntary departure. As a result, the Court held that the Defendant's underlying removal proceedings resulting in the February 3, 2003 removal order were fundamentally unfair.
The Court's Order also denied the Defendant's motion to dismiss the indictment, however, insofar as it sought to preclude the Government from relying on the May 14, 2007 expedited removal order to support a conviction under Section 1326. The Court declined to reach the issue of the constitutionality of 8 U.S.C. § 1225(b)(1)(D). The Court determined that, even assuming Section 1225(b)(1)(D) was unconstitutional, the Defendant's collateral attack on the May 14, 2007 expedited removal order would fail on the merits.
A district court may reconsider its prior ruling on a pretrial motion in a criminal case. United States v. Smith, 389 F.3d 944, 948 (9th Cir. 2004). The Court addresses below each of the Government's and the Defendant's arguments for reconsideration.
Second, the Government alleges that Martinez-Zavala attended his first hearing on October 22, 1999, rather than on October 21, 1999, as the Court stated. The Court relied upon the Defendant's transcript records, which indicate that the first hearing took place on October 21, 1999. (See Def.'s MTD, Ex. O.) The precise date is of no moment to the reasoning of the Order.
Third, the Government claims that the Court inaccurately stated that the IJ granted the Defendant's counsel's motion to withdraw on March 5, 2001. Upon review, the Court notes that the record indicates that the IJ signed the motion to withdraw on February 27, 2001, and it was filed on March 5, 2001. (See Govt.'s Resp., Ex. 11 at 132.) Again, the exact date did not impact the Court's analysis of the issues.
A. The Government's Motion for Reconsideration
The Government argues for reconsideration based on five grounds. The Court has considered and rejects each of the Government's grounds for reconsideration.
1. The Defendant's application for pre-conclusion voluntary departure could have potentially affected the outcome of the proceedings.
First, the Government contends that the Court clearly erred in finding that the IJ's failure to inform the Defendant of the differences between pre- and post-conclusion voluntary departure "potentially affected the outcome of the proceedings." The Government argues that pre-conclusion voluntary departure offered no "benefit" to Martinez-Zavala, so he ...