USA v. Cabral-Gonzalez

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 1:25-mj-00139-CYC
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. 	JOSE CABRAL-GONZALEZ,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
The government moves to dismiss the complaint against the above-captioned defendant.
ECF Nos. 3, 7. The Court grants the motion and dismisses the complaint with prejudice.
On July 21, 2025, the government sought and was granted a criminal complaint against
the defendant for illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a). ECF
No. 1. Three months later, the government moved to dismiss. ECF No. 3. The motion did not
indicate whether it sought dismissal with or without prejudice. Id.
Federal Rule of Criminal Procedure 48(a) permits the government “with leave of court”
to “dismiss an indictment, information, or complaint” prior to trial. “But if appropriate in light of
the purposes of Rule 48(a), a court can grant the motion on the condition that dismissal be with
prejudice—ensuring that the charges, once dropped, cannot be resurrected.” United States v.
Adams, 777 F. Supp. 3d 185, 214 (S.D.N.Y. 2025). “In exercising their discretion to dismiss with
prejudice under Rule 48(a), courts have generally looked to the same principles that motivate the
‘leave of court’ requirement.” Id. at 214–15. Those principles are “primarily intended to protect a
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defendant from prosecutorial harassment,” but also “permit[] courts faced with dismissal motions
to consider the public interest in the fair administration of criminal justice and the need to
preserve the integrity of the courts.” United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir.
1985).
The government’s motion to dismiss states that “although the electronic databases noted
in the affidavit of probable cause show that the defendant is an alien of the United States, there is
no documentary proof of citizenship or nationality that would be admissible in court.” ECF No. 3
at 1. Virtually identical language has appeared in two other government motions to dismiss
complaints charging illegal reentry filed before the undersigned. See Motion To Dismiss
Complaint, United States v. Quintanilla-Artero, No. 25-mj-00140-CYC (D. Colo. Aug. 6, 2025),
Dkt. No. 14; Motion To Dismiss Complaint, United States v. Hernandez-Rodriguez, No. 25-mj-
00148-CYC (D. Colo. Sep. 30, 2025), Dkt. No. 3. Given that there are six full-time magistrate
judges randomly hearing criminal cases in Denver, other parallel examples almost certainly exist.
To address this recurring phenomenon, the Court held a hearing on the motion, ECF No.
4, and inquired of the government how its charging practices in these cases were consistent with
the requirement that a government attorney assess “that the admissible evidence will probably be
sufficient to obtain and sustain a conviction” prior to commencing federal prosecution. U.S.
Dep’t of Just., Just. Manual § 9-27.220. That guideline “sets forth the longstanding threshold
requirement from the Principles of Federal Prosecution that a prosecutor may commence or
recommend federal prosecution only if he/she believes that the person will more likely than not
be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction
will be upheld on appeal.” Id. The Court therefore required a supplemental pleading to explain
the government’s compliance with that provision. See ECF No. 4.
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Rather than doing so, the government’s supplemental pleading essentially admits non-
compliance. It recognizes that, as to “[t]he defendant’s status as an alien,” which is “one of the
four elements of the crime of illegal re-entry,” it lacks sufficient evidence “to prove it beyond a
reasonable doubt.” ECF No. 7 at 2. What is more, it concedes that “whether admissible evidence
of this fact would be readily available . . . was not known to the United States at the time the
criminal complaint was sought.” Id. at 2. Such practices raise the “concern that ‘prosecutors have
rushed to charge cases before properly investigating them . . . .’” United States v. Butler, No.
1:25-cr-00256 (ZMF), 2025 WL 2835678, at *2 (D.D.C. Oct. 3, 2025) (quoting United States v.
Beidleman, No. 25-cr-270, 2025 WL 2803850, at *1 (D.D.C. Oct. 1, 2025)). That, in turn,
weighs in favor of a dismissal with prejudice. See id. at *3.
To be sure, the Justice Manual “is not intended to, does not, and may not be relied upon
to create any rights, substantive or procedural, enforceable at law by any party in any matter,
civil or criminal.” U.S. Dep’t of Just., Just. Manual § 1-1.200. And “[i]n our system of separation
of powers, the role of the judiciary is to ‘say what the law is,’” Adams, 777 F. Supp. 3d at 213
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)), “not to ‘take Care that the
Laws be faithfully executed.’” Id. (quoting U.S. Const. art. II, § 3). Accordingly, “a court cannot
fail to grant leave [to dismiss] simply because it disagrees with the prosecutor’s substantive
choices as to what merits prosecution.” United States v. Madzarac, 678 F. Supp. 3d 42, 46
(D.D.C. 2023). Accordingly, denial of the motion to dismiss falls outside of the Court’s
discretion. But in choosing between with-prejudice and without-prejudice dismissal, a court
considers “the ‘effect [that dismissal without prejudice] has on the defendant.’” Adams, 777 F.
Supp. 3d at 218 (quoting Madzarac, 678 F. Supp. 3d at 46)). Here, that effect would be to subject
the defendant to future potential arrest and prosecution for a case that the government cannot —
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and apparently never knew that it could — prove. There is nothing to gain from preserving that
possibility.
The government’s Motion To Dismiss Complaint, ECF No. 3, and Supplemental Motion
To Dismiss Complaint and Quash Arrest Warrant, ECF No. 7, are therefore GRANTED. It is
further ORDERED that the Complaint, ECF No. 1, is DISMISSED with prejudice.
Dated this 13th day of November, 2025 at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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