USA v. Garcia-Gomez

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Francisco Javier Garcia-Gomez,
Defendant.
No. CR-25-01707-001-PHX-DWL
ORDER
The government has moved, pursuant to Rule 48(a) of the Federal Rules of Criminal
Procedure, to dismiss the indictment without prejudice. (Doc. 14.) Defendant contends
the dismissal should be with prejudice. (Doc. 17.) For the reasons that follow, the
government’s motion is granted and the indictment is dismissed without prejudice.
RELEVANT BACKGROUND
On December 3, 2025, ICE officers came into contact with Defendant. (Doc. 1 at
4.) According to the complaint, Defendant admitted that he was not a citizen of the United
States and that he had entered the United States without permission. (Id. at 4-5.) The
complaint further alleges that Defendant attempted to flee and that when the ICE agents
caught him and performed a search incident to arrest, they found a loaded firearm in his
waistband. (Id. at 5.) As a result, Defendant was charged with being an unlawful alien in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a)(8). (Id. at 6.)
On December 10, 2025, Defendant had a detention hearing. (Doc. 5.) Over the
government’s objection, the magistrate judge ordered Defendant released on his own
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recognizance. (Doc. 6.) Defendant was then immediately “taken into Immigration[] and
Customs Enforcement custody.” (Doc. 14 at 1. See also Doc. 17 at 2 [“Instead of releasing
Mr. Garcia-Gomez [following the detention hearing], federal government officials
detained him and transported him to the Eloy Detention Center where he was held in ICE
custody.”].)
On December 23, 2025, the grand jury returned an count indictment charging
Defendant with the same offense asserted in the complaint. (Doc. 8.)
On December 29, 2025, an immigration judge ordered that Defendant be removed
from the United States. (Doc. 14 at 1-2.)
On December 31, 2025, the arraignment was scheduled to take place. (Doc. 12.)
The arraignment did not occur because, according to the minute entry, “Defendant not
present due to being held in ICE custody.” (Id.) Over defense counsel’s objection, the
arraignment was continued to January 7, 2025. (Id.)
On January 7, 2026, the rescheduled arraignment again did not take place because,
according to the minute entry, “Defendant not present due to being held in ICE custody.”
(Doc. 13.)
On or about January 13, 2026, Defendant was removed from the United States.
(Doc. 18 at 1 n.1.)
On January 14, 2026, the government moved to dismiss the indictment without
prejudice. (Doc. 14.)
On January 23, 2026, Defendant filed a response. (Doc. 17.)
On January 30, 2026, the government filed a reply. (Doc. 18.)
DISCUSSION
The government contends the dismissal should be without prejudice because
“[t]here has been no showing or allegation of bad faith, nor other constitutional violations.”
(Doc. 18 at 1-2.) Defendant argues the dismissal should be with prejudice because he
“spent nearly two months in federal custody awaiting his day in court” and “that day never
came because ICE detained him, failed to transport him to court, and then deported him.
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The government has had ample opportunity to prosecute Mr. Garcia-Gomez for the instant
offense. It should not be given another opportunity.” (Doc. 17 at 2.) Defendant further
contends that “[w]hen an Article III court has ordered a defendant released, the retention
of a defendant in ICE custody contravenes a determination made pursuant to the Bail
Reform Act.” (Id. at 2-3, citation omitted.)
In United States v. Arevalo-Garcia, 2022 WL 2356763 (D. Ariz. 2022), the Court
addressed a similar issue. There, the arraignment of a defendant who had been indicted on
one count of illegal reentry after deportation did not occur because he had been
“inadvertently transferred from the [U.S. Marshal’s] custody to that of U.S. Immigration
and Customs Enforcement (ICE), who removed him to his home country of Mexico while
his criminal case remained pending.” Id. at *1 (citation omitted). Afterward, the
government moved to dismiss the indictment without prejudice and the defendant argued
the dismissal should be with prejudice, with both sides making arguments similar to the
arguments here. Id. The Court concluded a without-prejudice dismissal was warranted
because “the government did not act in bad faith or engage in outrageous conduct—
Defendant’s removal to Mexico appears to have been the product of an administrative
oversight and Defendant does not argue (and could not credibly argue) that the government
is somehow gaining a tactical advantage in its pursuit of a § 1326 charge against him by
dismissing without prejudice at this juncture. For these reasons, the dismissal request is
not prompted by considerations clearly contrary to the public interest and there is no reason
to believe Defendant will be subjected to prosecutorial harassment. To the contrary,
Defendant has received what is [i]n essence a windfall—he is escaping, at least for now,
prosecution on charges the grand jury has already found to be supported by probable
cause.” Id. at *1-2. Here, too, the government has not gained any tactical advantage as a
result of Defendant’s removal to Mexico and Defendant is effectively receiving a windfall,
by escaping (at least for now) prosecution on a serious charge the grand jury has already
found is supported by probable cause.
One difference between the cases, of course, is that the defendant in Arevalo-Garcia
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was accidentally removed to Mexico even though he was supposed to remain in criminal
custody, whereas Defendant was intentionally placed in immigration custody (and then
intentionally removed to Mexico) after a magistrate judge ordered him released from
criminal custody. Defendant argues that he should not have been placed in immigration
custody at all under these circumstances—as noted, he contends that “[w]hen an Article III
court has ordered a defendant released, the retention of a defendant in ICE custody
contravenes a determination made pursuant to the Bail Reform Act”—and seems to
identify his placement in immigration custody as proof of the sort of bad faith that would
justify overriding the government’s presumptive right to a without-prejudice dismissal
under Rule 48(a). United States v. Hayden, 860 F.2d 1483, 1488 (9th Cir. 1988) (“Rule
48(a) allows the government, provided it is not acting in bad faith, to dismiss an indictment
without prejudice and later to reindict based on the same or similar charges. . . . [W]hen
the government requests a Rule 48(a) dismissal in good faith, the district court is duty
bound to honor the request.”). The problem with this argument is that there was nothing
impermissible about the federal government’s decision to place Defendant in immigration
custody after he was released from criminal custody. See generally United States v. Sixto,
2023 WL 7282360, *2 (D. Ariz. 2023) (“The Court . . . joins the unbroken line of courts,
from both within and outside the Ninth Circuit, that have concluded that a criminal
defendant who has been charged with a violation of 8 U.S.C. § 1326 but ordered released
from custody for criminal purposes under the Bail Reform Act (‘BRA’) may still be
detained for immigration purposes under the Immigration and Nationality Act (‘INA’).”);
United States v. Vasquez-Benitez, 919 F.3d 546, 552 (D.C. Cir. 2019) (“Detention of a
criminal defendant pending trial pursuant to the BRA and detention of a removable alien
pursuant to the INA are separate functions that serve separate purposes and are performed
by different authorities.”).
Finally, “[i]f the government, by placing [a released criminal defendant] in
immigration detention or removing him, jeopardizes the district court’s ability to try him,
then the district court may craft an appropriate remedy.” United States v. Santos-Flores,
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794 F.3d 1088, 1091 (9th Cir. 2015). But that is exactly what the Court is doing here. The
remedy of a without-prejudice dismissal is “appropriate” under the circumstances because
it provides a remedy to Defendant, without giving him a windfall, and is consistent with
the principle—set forth in Hayden—that a without-prejudice dismissal request made by the
government under Rule 48(a) should be granted when, as here, bad faith is lacking. Cf.
United States v. Perez-Canez, 2020 WL 1000029, *1 (D. Ariz. 2020) (granting the
defendant’s motion to dismiss the indictment where the government “chose to deport him
after he was released on pretrial supervision” but agreeing with the government that the
dismissal should be without prejudice); United States v. Escobar-Mariscal, 2020 WL
4284406 (D. Ariz. 2020) (same).
Accordingly,
IT IS ORDERED that:
1. The government’s motion to dismiss (Doc. 14) is granted.
2. The indictment (Doc. 8) is dismissed without prejudice.
3. All future hearings, including the rescheduled arraignment (Doc. 20), are
vacated as moot.
Dated this 4th day of February, 2026.
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