United States v. Uriel Solis-Sanchez , 533 F. App'x 769 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50235
Plaintiff - Appellee, D.C. No. 3:11-cr-03122-DMS-1
v.
MEMORANDUM*
URIEL SOLIS-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted July 11, 2013**
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Defendant Uriel Solis-Sanchez appeals the district court’s decision not to
use its supervisory powers to dismiss his indictment for a violation of 8 U.S.C.
§ 1326, which prohibits the reentry of aliens who have been removed. Reviewing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
for abuse of discretion, we affirm.1 See United States v. Stinson, 647 F.3d 1196,
1209 (9th Cir. 2011) ("A district court’s decision not to use its supervisory powers
to dismiss an indictment is reviewed only for abuse of discretion."), certs. denied,
132 S. Ct. 1768 and 132 S. Ct. 1773 (2012).
"A district court may exercise its supervisory power to implement a remedy
for the violation of a recognized statutory or constitutional right; to preserve
judicial integrity by ensuring that a conviction rests on appropriate considerations
validly before a jury; and to deter future illegal conduct." United States v.
Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008) (internal quotation marks omitted).
But, "because dismissing an indictment with prejudice encroaches on the
prosecutor’s charging authority, this sanction may be permitted only in cases of
flagrant prosecutorial misconduct." Id. (internal quotation marks and brackets
omitted). Moreover, "[a] court may dismiss an indictment under its supervisory
powers only when the defendant suffers substantial prejudice." Id. at 1087(internal quotation marks omitted).
1
We decline the government’s invitation to review only for plain error,
because Defendant sufficiently raised his supervisory-powers argument before the
district court. We also decline Defendant’s invitation to review de novo, because
the cases he cites in support of that standard are not on point. At any rate, the
district court’s decision was proper under any of the standards suggested to us.
2
Under those standards, the district court did not abuse its discretion in
declining to dismiss the indictment. Even assuming that violations of the Due
Process Clause and Rule 5 occurred, the government’s actions did not rise to the
level of "flagrant prosecutorial misconduct."2 Any violation resulted from a
practice meant to handle the large number of defendants arrested in the district
each day, serious security and administrative concerns, and the need to screen for
health issues, rather than from any improper purpose such as a desire to inflict
punishment or to obtain evidence improperly. Moreover, Defendant has not
suffered substantial prejudice, because he is in no worse a legal position in regard
to his prosecution than he would have been in the absence of any violation.
We reject the argument that Bell v. Wolfish, 441 U.S. 520 (1979), provides
the appropriate standard for deciding this case. Although Bell gives the standard
for deciding when a pretrial detainee’s due process rights have been violated, it
says nothing about when dismissal of an indictment is the appropriate remedy for
such a violation. We also reject the argument that the pervasiveness of delays and
the unconstitutional conditions of confinement justify a strong remedy to deter
2
We decline the government’s invitation to ignore the arguably
unauthorized reply brief that Defendant filed in the district court because, even if
his allegations of deplorable treatment were properly before the court, the district
court did not err.
3
future misconduct because the government, under court order, already has
corrected the problems of which Defendant complains. Thus, dismissing
Defendant’s indictment is unnecessary to deter future conduct.
AFFIRMED.
4