Opinion
6:21-po-234-HBK-1
09-22-2021
UNITED STATES OF AMERICA, Plaintiff, v. MYRNA SANDOVAL, Defendant.
ORDER DIMISSING CASE WITHOUT PREJUDICE UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 48(b)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court upon periodic review. Defendant Myrna Sandoval was issued a citation (No. F- 5200233) for one count of failing to pay a recreation fee on or about January 24, 2021 in violation of 36 C.F.R. § 261.17. (Doc. No. 1). After failure to make payment, an initial appearance was scheduled in this matter for May 18, 2021. (Id.).
The Court reviewing the citation sua sponte discovered it failed to advise Defendant whether the offense was subject to forfeiture of collateral or required a mandatory appearance. (Doc. No. 4). Governing law dictated that the offense charged was not subject to a mandatory appearance and Defendant should have been permitted to post collateral in lieu of appearance. (Id.). The Court provided the Government until July 27, 2021 to amend the violation notice pursuant to Fed. R. Crim. P. 7(e), and reset the initial appearance for September 14, 2021. (Id.)
The Government failed to amend the violation notice and failed to appear at the September 14, 2021 initial appearance. The Ninth Circuit has held “that under Rule 48(b) it is within the court's inherent power to dismiss a case with prejudice for want of prosecution, whether or not there has been a Sixth Amendment violation.” United States v. Simmons, 536 F.2d 827, 833-34 (9th Cir. 1976). Here, the government's failure to amend the citation and appear at the initial appearance constitutes “want of prosecution.” The Court accordingly dismisses, without prejudice, the citation issued against Defendant.
Accordingly, it is ORDERED:
1. The citation issued on January 24, 2021 for failing to pay a recreation fee in violation of 36 C.F.R. § 261.17 (Doc. No. 1) is DISMISSED without prejudice.
2. The Clerk of Court is directed to close this case.