                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10089

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00410-RTB-
                                                 CRP-1
  v.

ARNETT THOMAS,                                   MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Roger T. Benitez, District Judge, Presiding

                             Submitted June 9, 2014**
                             San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and BEA, Circuit Judges.

       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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.




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