The federal court has dismissed without prejudice the case against a man whose convictions with his wife over allegations that they harbored an illegal alien child was reversed by U.S. Court of Appeals for the Ninth Circuit.
Dismissal without prejudice means the U.S. government may re-file the indictment against Francisco Muna Tydingco.
In an order on Monday, U.S. District Court for the NMI Chief Judge Ramona V. Manglona granted the U.S. government’s request to dismiss the case against Francisco Tydingco.
Assistant U.S. attorney Garth Backe, counsel for the U.S. government, said that under Rule 48 of the Federal Rules of Criminal Procedure, the courts “must grant leave to the government to dismiss an indictment, information, or complaint unless dismissal is clearly contrary to manifest public interest.”
Last April 26, the parties, through their lawyers, asked the court to postpone the trial in this case to July 9, 2019. Manglona granted the request.
In the parties’ motion for continuance of the trial, the counsel said since the case was remanded to the District Court by the Ninth Circuit, the parties have been in discussions regarding a possible pretrial resolution.
The parties said no agreement could be reached.
The parties said it thus appears the matter will proceed to trial, but before that occurs, the prosecution intends to seek a superseding indictment to add and/or modify the charges.
Backe said he is scheduled to attend a conference in Columbia, South Carolina from June 5 to 7, 2019 and after that, before returning to Saipan he has two oral arguments before the Ninth Circuit in Hawaii on June 12, 2019.
Steven P. Pixley, counsel for Francisco Tydingco, has a trial scheduled in federal court on June 4, 2019.
Francisco Tydingco and his wife, Lili Zhang Tydingco, are both out of custody.
Manglona originally set the matter for re-trial on April 30, 2019.
A federal grand jury indicted the Tydingco couple for allegedly receiving money to harbor two illegal Chinese aliens, including a child they enrolled at a public school.
In June 2016, a federal court jury rendered a unanimous guilty verdict finding Lili Zhang Tydingco guilty of one count of harboring an alien and Francisco Tydingco guilty of aiding and abetting the harboring.
In December 2016, Manglona sentenced Lili Zhang Tydingco to 10 months in prison; she sentenced Francisco Tydingco to 21 months in prison.
In the order last year that reversed the convictions, the Ninth Circuit judges held that Manglona’s instruction defining “harbor” was erroneous because it did not require the jury to find that the Tydingcos intended to violate the law, and the error was not harmless. The judges said the District Court’s instruction defining “reckless disregard” was plainly erroneous and the instruction may have affected the outcome of the trial, and the error constitutes a miscarriage of justice, warranting a new trial, because the jury could have convicted the couple on an invalid legal theory.
With the reversal of the convictions, the Ninth Circuit remanded the case to the District Court for a new trial.