ORLANDO GARCIA, District Judge
Pending before the Court is the Government's Motion for Reconsideration of Order of Dismissal (Dkt. # 163). Defendant Tasha Mathis filed a response (Dkt. # 171). Having reviewed the motion, response and applicable law, the Court finds that the Government's motion should be denied.
The Court's order dismissing the indictment against Defendants was entered on December 18, 2006. (Dkt. # 160). An appeal by the United States from an order dismissing an indictment shall lie to a court of appeals, and the appeal "shall be taken within thirty days after the order has been rendered." 18 U.S.C. § 3731; see also Fed.R.App.P. 4(b)(1)(B)(i). This requirement is both mandatory and jurisdictional. United Stated v. Greenwood, 974 F.2d 1449, 1466 (5th Cir. 1992) (citing Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561 (1978)). The Government filed its notice of appeal, invoking the jurisdiction of the court of appeals, on January 16, 2007 (Dkt. # 161). Thirteen (13) days later, the Government filed its motion for reconsideration in district court. (Dkt. # 163). Although it would technically appear that the district court lost jurisdiction upon the filing of the notice of appeal, the Fifth Circuit has chosen practicality over technicality and has determined that motions for reconsideration filed after notices of appeal may still be considered by the district court. Greenwood, 974 F.2d at 1468.
Having considered the motion, however, the Court's opinion remains unchanged. The Government has simply rehashed the same legal arguments, citing only one new unpublished opinion: U.S. v. Krouse, 2006 WL 3697204 (5th Cir. 2006). Unfortunately, that opinion offers no guidance in this case because the court of appeals was not required to analyze the full scope and application of the statute. In Krouse, the defendant pleaded guilty to the use of unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2). The defendant did not challenge the factual basis for the plea. Instead, she raised the issue for the first time on appeal. The appellate court was limited to a plain error review, and determined that none had occurred. As noted therein, the Fifth Circuit "has not previously addressed whether such certificates qualify as `unauthorized access devices' for the purposes of § 1029(a)(2)," and while the Court noted that the statutory definition "may encompass devices not specifically enumerated in the statute," the Court did not engage in any meaningful or precedent-setting analysis that could be applied to the facts herein.
This Court thoroughly reviewed the facts and law when rendering its decision. As previously noted:
It is undisputed that the NRMR tickets in question are, by their very nature,
non-revenue. They are free passes or free flight coupons, distributed by the airlines in
paper form. They are purely complimentary, akin to a free meal coupon given by a restaurant to a customer. Southwest Airlines does not expect payment for the pass when it is issued. Nor is there any expectation of payment in the future. As a result, there is no credit to extend or account to access in order to obtain the airline services.
(Dkt. # 160, p. 6). In applying the law, the Court must "strive to make sense as a whole out of our law as a whole . . . [it must] take the music of any statute as written . . . and play [that music in full harmony]." 2A Sutherland Statutory Construction 48A:08 (6th ed. 2000). The Government's position in this case simply fails to harmonize the law as written, in light of the facts.
It is therefore ORDERED that the Government's Motion for Reconsideration of Order of Dismissal (Dkt. # 163) is DENIED.