Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Diaz-Martinez

United States District Court, E.D. Virginia, Richmond Division

May 29, 2019

UNITED STATES OF AMERICA,
v.
TRINIDAD DIAZ-MARTINEZ, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge.

         This matter is before the Court on the Defendant's MOTION TO RECONSIDER PORTION OF OPINION DENYING MOTION TO DISMISS RELATING TO LACK OF EVIDENCE THAT MR. DIAZ WOULD HAVE APPLIED FOR VOLUNTARY DEPARTURE (the "MOTION TO RECONSIDER") (ECF No. 51). By ORDER (ECF No. 50) and accompanying MEMORANDUM OPINION (ECF No. 49) (collectively, the "Motion Ruling") entered on May 1, 2019, the Court denied Trinidad Diaz-Martinez's ("Diaz-Martinez") MOTION TO DISMISS INDICTMENT (ECF No. 18) . Diaz-Martinez now moves the Court to reconsider a portion of the Motion Ruling. ECF No. 51.

         The Court has considered the MOTION TO RECONSIDER (ECF No. 51), the sworn declaration attached thereto (ECF No. 51-1), and the Government's RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO RECONSIDER (ECF No. 52) .[1] For the following reasons, the Defendant's MOTION TO RECONSIDER PORTION OF OPINION DENYING MOTION TO DISMISS RELATING TO LACK OF EVIDENCE THAT MR. DIAZ WOULD HAVE APPLIED FOR VOLUNTARY DEPARTURE (ECF No. 51) will be denied.[2]

         A. Legal Framework

         Motions to reconsider are available in criminal cases in limited circumstances. See United States v. Dickerson, 166 F.3d 667, 678-80 (4th Cir. 1999) (adopting abuse of discretion standard for reviewing district court's denial of motion to reconsider following a ruling on a motion to suppress), rev'd on other grounds, Dickerson v. United States, 530 U.S. 428 (2000); United States v. Harris, 2014 WL 5797762, at *l-7 (D. Md. Nov. 6, 2014) (denying defendant's motion to reconsider suppression ruling); United States v. Gentry, 2011 WL 13172169, at *l-2 (D.S.C. April 7, 2011) (denying Government's motion for reconsideration of order granting new trial); United States v. Wilson, 120 F.Supp.2d 550, 553-54 (E.D. N.C. 2000) (denying Government's motion to reconsider the Court's order dismissing indictment).

         For motions to reconsider suppression rulings, the Fourth Circuit has adopted the following rule: "[W]hen the evidence forming the basis for a party's motion of reconsideration was in the movant's possession at the time of the initial hearing. . .the movant must provide a legitimate reason for failing to introduce that evidence prior to the district court's ruling on the motion to suppress." Dickerson, 166 F.3d at 679. In adopting this rule, the Fourth Circuit recognized that "the district court has a strong interest in controlling its docket and avoiding piecemeal litigation." Id. Other courts have followed the Dickerson rule for motions to reconsider in contexts other than suppression rulings, and the parties have identified no contrary authority. See Gentry, 2011 WL 13172169, at *l-2; Wilson, 120 F.Supp.2d at 553. Thus, the Court will follow the Dickerson rule here.

         In Dickerson, the Government had "numerous opportunities to introduce the evidence prior to the district court's ruling" on the motion. 166 F.3d at 67 9. The Government argued that it did not introduce the evidence before the court's ruling because: (1) it did not believe that the district court would find a particular witness believable; and (2) it did not want to burden the court with cumulative evidence. See id. at 678-80. The Fourth Circuit held that the district court did not abuse its discretion in not considering this "evidence that was in the Government's possession at the time of the initial hearing." Id. at 680.

         It is also important to recognize that, to succeed on a collateral challenge under 8 U.S.C. § 1326(d), it is the alien's burden to demonstrate that he satisfies the statute's requirements. See United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005); United States v. Galcia, No. 1:15cr59, 2016 WL 4054926, at *2 (E.D. Va. July 26, 2016). To show that he satisfies the prejudice portion of 8 U.S.C. § 1326(d)(3), Diaz-Martinez must proffer evidence establishing that, "but for the errors complained of [in his 1997 deportation proceedings], there was a reasonable probability that he would not have been deported." El Shami, 434 F.3d at 665; United States v. Lopez-Collazo, 824 F.3d 453, 462 (4th Cir. 2016) .

         B. Analysis

         The MOTION TO RECONSIDER asks the Court to reconsider its finding that "no evidence existed in the record to support a finding that Mr. Diaz would have applied for pre-conclusion voluntary departure." ECF No. 51 ¶ 1; Mem. Op. at 36-39. In support of the MOTION TO RECONSIDER, Diaz-Martinez provides, for the first time, a sworn declaration that avers, in relevant part:

I understand from my lawyer that in 1997, I would have been eligible for voluntary departure, meaning I could have agreed to return to El Salvador voluntarily without an immigration judge ordering that I be removed from the United States.
If I had been granted a voluntary departure, I had money saved that I could have paid to travel back to El Salvador voluntarily. My uncle and other family members would have been able to help as needed as well. I would have accepted the voluntary departure.

ECF No. 51-1 ¶¶ 5-6. "Mr. Diaz asks the Court to consider this evidence and reconsider its finding that no evidence exists in the record to indicate that Mr. Diaz would have applied for voluntary departure." ECF No, 51 ¶ 4.

         At bottom, Diaz-Martinez asks the Court to consider evidence that he could have presented at several points during the Court's consideration of the MOTION TO DISMISS INDICTMENT (ECF No. 18). Diaz-Martinez briefed the MOTION TO DISMISS INDICTMENT (ECF Nos. 18 and 20), participated in an evidentiary hearing on November 27, 2018, and filed two rounds of supplemental briefing following the November 27 hearing (ECF Nos. 34, 38, 39, 44, 48). At no point during that process did Diaz-Martinez raise the evidence that he now asks the Court to consider. Accordingly, the MOTION TO RECONSIDER falls squarely within the rule articulated in Dickerson. It is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.