United States v. Arnett Thomas

578 F. App'x 687

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2014
• Docket: 13-10089
• Status: Unpublished

Opinion

MEMORANDUM **

Arnett Thomas was charged with threatening a federal judge under 18 U.S.C. § 115. He was found incompetent to stand trial and was civilly committed. After his commitment, Thomas moved to dismiss the indictment, arguing that due process and a correct interpretation of the commitment statutes, 18 U.S.C. §§ 4241 and 4246, required dismissal. The district court denied the motion and Thomas appealed. After Thomas appealed, the government sought voluntary dismissal without prejudice, and the district court issued an order dismissing the indictment.

Because the indictment against Thomas has been dismissed, this appeal is moot. See Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 963-64 (9th Cir.2007); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir.1992). The district court’s order denying Thomas’s motion to dismiss is not “capable of repetition yet evading review.” The order is suitable to review on appeal and its duration is not so short as to evade judicial review. See United States v. Hickey, 367 F.3d 888, 893 (9th Cir.2004); cf. United States v. Howard, 480 F.3d 1005, 1009-10 (9th Cir.2007). The mere possibility of a future indictment is, moreover, too remote to satisfy this exception. See In re Burrell, 415 F.3d 994, 999 (9th Cir.2005). Nor is Thomas’s appeal saved from mootness under the “voluntary cessation” exception, as there is no indication that Thomas will again be indicted while committed. Cf. Demery v. Arpaio, 378 F.3d 1020, 1026 (9th Cir.2004).

Appeal DISMISSED as moot.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.