Friday, December 19, 2014

Court Affirms Denial of 2255 Motion With Selective Prosecution Claim

US v. Mason: Mason was driving a car in Georgia when it was stopped for having overly tinted windows.  The trooper also suspected that Mason and his passenger were up to something because he did not pull over immediately, there was a strong air freshener smell from the car, their stories about where they were going differed, and "there was no visible luggage."  The trooper requested back up and a drug dog, noting that "these guys are spooky, spooky."  He later said that he "felt like we were fixing to have a violent confrontation" because Mason and his passenger were "older black males that are not in good shape" and they were likely "ready to shoot it out."  Mason refused to consent to search.  The drug dog arrived (after Mason got a ticket for the tint), alerted and 10 kilograms of cocaine was found in the trunk.

Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine.  After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him.  In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced.  During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk.  The jury convicted Mason and he was sentenced to life in prison.  His conviction and sentence were affirmed on appeal.  Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion.  The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise.  Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful.  Nor did the district court err by not holding an evidentiary hearing on the issue.  The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument.  The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.

Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.

District Court "Repeated and Direct" Urging that Defendant Accept Plea Bargain Is Plain Error

US v. Sanya: Sanya ran a credit card fraud scheme, to which he pleaded guilty in federal court July 2012.  He was released on bond pending sentencing.  Six weeks later he was arrested after having restarted the fraud scheme.  He was charged in federal court again, this time with multiple charges including access device fraud and aggravated identity theft.  The Government quickly offered a plea bargain that would allow the sentencings for the original conviction and the new charges to take place at the same time.  Sanya rejected the offer initially, but after the district court opined at a detention hearing about the benefits of doing so, Sanya changed his mind.  After entering a guilty plea, he was sentenced to a total (on both convictions) of 212 months in prison.

On appeal, the Fourth Circuit vacated his second set of convictions because of the district court's insertion of itself into plea negotiations.  Applying plain error review, the court found that the district court erred (as the Government conceded) and that the error was plain (as the Government did not).  As to whether the error affected Sanya's substantial rights, the court concluded that the record showed a "reasonable probability that, but for the error, he would not have entered the plea," including his initial refusal of the offer, the breadth of the district court's commentary, and the swiftness with which Sanya changed his mind (he signed a plea agreement five days after the hearing).  The court distinguished the Government's reliance on cases taken from other jurisdictions, raised mostly in a series of five Rule 28(j) letters filed in three weeks ("perhaps a record," the court notes).  Finally, the court concluded that the error was of the kind that it should notice, observing that the district court's comments were "repeated and direct" and that its "exhortations saturated the hearing."

Thursday, December 18, 2014

Labyrinthine sex offender registration requirements confound another defendant

US v. Collins - In this appeal, Dwaine Collins challenged his failure to register conviction on the grounds that the government failed to prove that he knew he had an obligation to register.

Collins, an illiterate man, committed the offense that triggered his 10-year registration obligation in 1998 in North Carolina.  After his release from prison, Collins relocated to Ohio where he registered.  In 2002, Collins failed to register, and moved to Parkersburg, WV.  Nine years later, he was arrested in Ohio for an attempted theft, and he received a state failure to register charge dating back to 2002.  A state court judge in Ohio had suggested to Collins in his state court proceeding that the time period for registration could have expired.  After serving a state sentence in Ohio, Collins returned to WV, where he did not register.  Approximately a year and a half later, he received the instant federal indictment for failing to register under SORNA.

The district court determined that Collins knowingly failed to register, finding ample evidence of Collins’ knowing avoidance of his obligation to register.  It held that the knowledge element of the SORNA offense was satisfied as long as Collins knew that he had to register under some scheme, federal or state, but not SORNA specifically.  The district court also determined that the state court judge was merely advising Collins, not giving him a binding legal opinion on Collins’ registration requirements going forward.  The Fourth Circuit affirmed the district court’s findings.

Collins also appealed the reasonableness of his sentence.  He received a sentence of 30 months’ imprisonment, to be followed by a term of supervised release of 10 years.   Pursuant to the Sentencing Commission’s recent clarifying amendment that the supervised release term associated with a SORNA offense is not a “sex offense,” the Fourth Circuit vacated the supervised release portion of Collins’ sentence and remanded for further proceedings.

Appellant liable as both principal and accessory after the fact

US v. White - In this case, Appellant White received three 78-month concurrent terms of imprisonment for his part(s) in the intentional burning of a two-unit apartment building he owned.  He received convictions for conspiracy to commit arson and mail fraud, aiding and abetting arson, and accessory after the fact to arson.  White made two sufficiency of the evidence challenges: 1) that the government failed to establish the interstate commerce nexus required to sustain the arson convictions of counts 1 and 2; and 2) that the evidence did not establish that he assisted an uncharged co-conspirator in evading apprehension and punishment for the accessory-after-the-fact conviction.  White further challenged his sentence, that the court should not have considered the two-unit apartment house a “dwelling”, which increased his base offense level.    The Fourth Circuit affirmed, 2-1, with a dissent from Justice Wynn, finding that, as a matter of law, a person should not be held criminal liable as both a principal and an accessory after the fact to him or herself, and the defendant’s conviction for being an accessory after the fact constitutes clear legal error.

In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime.  It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”

(Decided November 17, 2014).

Change in law after sentencing would likely have resulted in lesser sentence

US v. Archie - In this appeal, the Fourth Circuit reviewed two sentencing issues: 1) whether the district court sentenced the defendant in violation of the 6th Amendment as set forth in Alleyne; and 2) whether the district court relied incorrectly on insufficient evidence in enhancing the defendant’s sentence under ACCA.  The Fourth Circuit affirmed.

Appellant Sherwin Archie pleaded guilty to charges arising from his part in the armed robbery of a Family Dollar store.  In anticipation of sentencing, the Probation Officer drafted a PSR, designating Archie an armed career criminal, based on three prior felony convictions: 1977 3rd degree robbery conviction from New York; 1983 attempted burglary conviction from New York; and a 1994 conviction from North Carolina for assault.  There was also evidence that Archie “brandished” a weapon in the armed robbery, and the district court made a judicial finding of brandishing, which raised the statutory minimum for Archie’s sentence.

Archie’s main issue on appeal is whether he waived the right to argue that his sentence was improperly enhanced by the district court’s determination that he brandished a weapon during the armed robbery, with the appellate waiver in his plea agreement.  Archie’s sentencing occurred just prior to the publication of the Supreme Court’s case Alleyne, which held that because mandatory minimum sentences increase the penalty for crimes, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to a jury.  

The Fourth Circuit found that, at the time of Archie’s sentencing, that the district court correctly applied the law that judicial factfinding that increases a mandatory minimum was permissible under the 6th Amendment.  Even though Alleyne soon overruled this position, the post-sentencing change in the law did not invalidate Archie’s appeal waiver, according to the Fourth Circuit.  The panel determined that Archie assumed the risk that the law under which he was sentenced could change later on, and that Archie’s appeal issue was buyer’s remorse.  Further, the Fourth Circuit has invalidated some appellate waivers in the past, but it chose not to do so here because the sentencing court did not violate “a fundamental constitutional or statutory right that was firmly established at the time of sentencing.”  

Next, Archie argued that there was insufficient evidence to prove the existence of the 1977 3rd degree robbery conviction, as the court had relied upon computerized records to establish the fact of this conviction.  Of the four records the district court considered, one of the records had an inconsistent date.  The district court disagreed and determined that the records provided established by a preponderance the conviction.  On appeal, the Fourth Circuit determined that it had previously considered the issue of what records a district court may consider in determining the fact of a prior conviction and that certified computer printouts, such as the ones submitted here by the Government, were sufficient to prove the fact of a prior conviction.

(Decided November 17, 2014).

960-month sentence survives 8th Amendment challenge

US v. Dowell - In this appeal, the Fourth Circuit considered the propriety of a 960-month sentence, and whether the sentence violates the 8th Amendment’s prohibition against cruel and unusual punishment on the grounds that the sentence was disproportionate to the severity of his crimes, and secondly, whether the district court correctly applied an enhancement for a “vulnerable victim” here.

The Fourth Circuit recently rejected a similar as-applied 8th Amendment challenge in Cobler, where it had upheld a 1440-month sentence on a child porn offender whose appeal argument was indistinguishable from Dowell’s here.  Cobler had, in fact, been convicted of fewer counts than Dowell.  In Cobler, the Fourth Circuit determined that Cobler’s “shocking and vile conduct...failed to substantiate the threshold inference of gross disproportionality” and that Cobler’s crimes were “at least as grave” as possession of 672 grams of cocaine, which the Supreme Court had considered sufficiently egregious to justify a similar sentence (see Harmelin v. Michigan).   The Fourth Circuit decided not to change that course in this case.  Moreover, the 960-month sentence imposed was within the guidelines range of life imprisonment.

The Fourth Circuit found that the application of the “vulnerable victim” enhancement here was in error, but it was a harmless one.  The district court applied the enhancement relying solely on age-related factors, which was an error.  However, the application of the enhancement here did not affect Dowell’s ultimate sentence, so the Fourth Circuit found the error was harmless.

(Decided November 13, 2014).

Illegal reentry sentence enhancement affirmed

US v. Avila  - In this appeal, the Fourth Circuit considered two procedural challenges the appellant made after his sentencing for illegal reentry.  First, he argued that the 8-level sentencing enhancement he received for having a prior conviction for 1st degree burglary in California was incorrect; and second, he argued that the district court’s explanation for his sentence was insufficient.  The Fourth Circuit affirmed.

Avila argued that the California 1st degree burglary should not qualify as an aggravated felony for the 8-level enhancement because it is not a crime of violence under Descamps’ analysis.  The Fourth Circuit found that under ACCA, this offense may not qualify as a predicate offense; however, for the enhancement here under a different statutory scheme than ACCA (to wit, 18 U.S.C. § 16), it does qualify as the definition of crime of violence in this context is more general.  Further, other courts have come to the conclusion that 1st degree burglary in California is a crime of violence, as it requires entry into an inhabited dwelling, and it presents a substantial risk of force with or without unlawful entry.

With regard to Avila’s second appeal issue, the Fourth Circuit found that the district court sufficiently explained its reasons for his sentence, by considering his history and characteristics, and that the safety of the public was the “driving reason” for the sentence it chose.

(Decided November 4, 2014).

Friday, December 05, 2014

Life Plus 60-Month Sentence Substantively Unreasonable

US v. Howard: Howard sold PCP in North Carolina, as evidenced by a string of controlled buys made from him by police.  He was charged, tried, and convicted of conspiracy to distribute, substantive distribution (nine counts), and possession of  a firearm in furtherance of drug trafficking.  All while on supervised release for a prior federal conviction.  In the PSR, Howard's advisory Guideline range was calculated as 78 to 97 months, although he faced a mandatory minimum 120-month sentence due to his prior conviction.

But Howard's sentence only rose from there.  First, the district court attributed more PCP to Howard, bumping his Guideline range up to 120 to 121 months.  Next, the Government requested a variance based on the Guidelines' undrerepresentation of Howard's criminal history, up to a Criminal History Category VI, bumping the range to 140 to 175 months.  The district court, "not satisfied," decided sua sponte that Howard was a de facto career offender and, after applying that Guideline, bumped Howard's range up to 420 months to life.  The district court sentenced Howard to life in prison on the drug counts, followed by a consecutive 60-month sentence on the gun count.  He also received a consecutive 60-month sentence following the revocation of his supervised release.

Howard appealed, challenging the substantive reasonableness of his sentence when requested to do so by the court.*  The Fourth Circuit found that Howard's sentence - life plus 60 months - was substantively unreasonable.  The "extent of the upward departure is unwarranted and amounts to an abuse of discretion" and "is not justified by consideration of the 3553(a) factors as articulated by the district court."  Specifically, the district court "abused its discretion by focusing too heavily on Howard's juvenile criminal history."  That history showed that "most of his serious criminal convictions occurred when he was eighteen years old or younger."  Looking to the Supreme Court's recent cases dealing with juvenile death penalties, the court noted that "in the sentencing context, the diminished culpability of juvenile offenders, given their lack of maturity, vulnerability to social pressures, and malleable identities."  The district court failed to address those issues.  The court also rejected the district court's conclusion that Howard's chance of recidivism was "[a]bsolutely 100 percent" by looking to his age, the age at which he might be released, and noting that recidivism declines as a person ages.  Finally, the court noted that the sentence imposed by the district court was well above what the Government recommended.  While not controlling, the experience of AUSAs can help achieve one of the key goals of the Sentencing Reform Act - avoiding unwanted disparities.

The court vacated Howard's sentence and remanded for further proceedings.  In doing so, it pointed out that it "goes without saying, then, that our holding is limited to the facts of this case."

* Although he initially appealed the supervised release sentence as well, Howard withdrew that issue and that appeal was dismissed.  Howard also challenged the sufficiency of the evidence supporting his convictions, an argument the court rejected.

Tuesday, November 04, 2014

Supervised release revocation sentence related back to initial offense, and Alleyne does not apply in revocation proceedings

US v. Ward:  In this appeal, the Fourth Circuit considered whether George Ward’s supervised release revocation sentence was imposed under the proper version of the statute governing terms of supervised release, whether the federal Savings Statute required a different result, and whether Alleyne applied in the supervised release context.

Ward pleaded guilty in December 1994 to several offenses that occurred between December 1993 and June 1994, receiving a sentence of 260 months (later reduced to 200 months) to be followed by 5 years of supervised release.  At the time of the sentence reduction Ward received, the court expressly left intact the original duration and conditions of his term of supervised release.  Ward left prison in 2010, and in April 2013, the government filed a petition to revoke his supervised release.  At his revocation hearing, Ward admitted the violations, and the district court sentenced Ward to a mandatory sentence, one-third of his supervised release term, pursuant to the version of the supervised release statute in place when Ward committed his original crimes.  The statute was amended prior to Ward’s original sentencing in 1994, but after his initial criminal activity.  At sentencing, the district court noted the harsh result, but that its hands were tied by the mandatory punishment called for by the old version of the statute.

The Fourth Circuit affirmed and held that Ward was subject to the mandatory minimum term under the old version of the supervised release statute (20 months’ imprisonment based on the original 5-year term) because his criminal activity took place while the old statute was in effect. The Supreme Court considered a similar scenario in 2000, in Johnson v. United States, and determined that the defendant was subject to the sentencing provisions of the pre-amendment statute in effect when the initial offense was committed, that “postconviction penalties relate to the original offense.”  Further, the federal Savings Statute, according to the Fourth Circuit, operated to preserve the mandatory minimum punishment provision of the old supervised release statute.

Finally, the Fourth Circuit held that Alleyne’s holding, requiring that a jury determine beyond a reasonable doubt any fact requiring imposition of a mandatory minimum sentence, did not apply to the supervised release revocation context.  It discussed how other courts have persuasively held that the constitutional protections afforded individuals in criminal trials are not similarly applicable in the postconviction context, such as supervised release revocation proceedings.  Individuals on supervised release, according to the panel, possess only “conditional liberty” on account of their convictions on an underlying offense, whereas defendants at trial have not yet been subjected to any deprivation of their liberties.  Thus, a defendant in a postconviction revocation proceeding does not have the constitutional right to a trial by jury under the standard of beyond a reasonable doubt.

Tuesday, October 21, 2014

Lack of Loss Amount In Verdict Leads to Misdemeanor; Lack of Proof to Limited Remand

US v. Catone: Catone was charged with three counts related to federal workers comp fraud, essentially for receiving income while receiving benefits and not informing the proper authorities.  At trial, the main evidence of this fraud was a $635 check that Catone had received from a local maintenance service.  The jury convicted on one count of filing a false form under 18 USC 1920.  Catone's relevant conduct was identified as over $128,000 dollars (everything he ever got for worker's comp, in essence) and his restitution obligation at over $106,000.  Catone argued that his offense was a misdemeanor, capped at one year of imprisonment, because the jury did not make a finding as to a particular loss amount.  The district court disagreed, sentencing Catone to a 16-month term of imprisonment and ordering him to pay the entire restitution amount.

On appeal, the Fourth Circuit affirmed Catone's conviction, but reversed his sentence.  As to his conviction, the court rejected (reviewing for plain error) his argument that the Government violated Brady by withholding a particular document, noting that (a) it was a document Catone signed and therefore was aware of, (b) was public and could have been uncovered by diligent investigation, and (c) wouldn't have changed the verdict anyway.  As to the sentence, the court first held that the 16-month term of imprisonment was over the one-year statutory maximum for a misdemeanor offense.  Section 1920 defines two offenses, based on the amount of loss involved - a misdemeanor ($1000 or less) and a felony (more than $1000).  Because the amount of loss increases the statutory maximum offense, it was an element of the offense that had to be charged in the indictment and found by the jury.  As it was not, Catone's sentence had to be vacated.  Turning to the loss and restitution amounts, the court found that the district court failed to apply the proper analysis (as the Government conceded) in calculating those amounts, thus requiring reversal.  But the court went further: "Because there is no evidence in the record that could support a loss amount exceeding $5,000, we direct the district court on remand to resentence Catone under U.S.S.G. §2B1.1(b)(1)(A), without any offense-level enhancements for loss amount."  In other words, the court denied the Government a chance at a "do over" on remand.

Congrats to the Defender office in Western North Carolina on the win!

No Pretrial Motion = No Suppression Review

US v. Moore: Moore was apprehended by Maryland police after running from an officer (who was interested in Moore because he might have been walking in public with an open beer).  Moore tossed a package into a dumpster during his flight which contained $10,000 worth of cocaine.  While Moore was in jail, his apartment was burglarized.  A subsequent search (conducted pursuant to a warrant) uncovered drugs, paraphernalia, $45,000 in cash, and two guns.  Moore was charged with multiple offenses, including possessing a firearm in connection with a drug trafficking crime.  Just prior to closing arguments at his bench trial, Moore moved to suppress "all the tangible evidence" because the original officer who wanted to talk to Moore lacked reasonable suspicion to make a Terry stop.  The district court denied the motion and convicted Moore on all counts.  He was sentenced to 271 months in prison.

Moore appealed both the denial of his motion to suppress and his firearm conviction, but the Fourth Circuit rejected his arguments.  On the suppression issue, the court noted that Rule 12 of the Rules of Criminal Procedure requires such motions to be made before trial and the failure to do so waives the ability to file such motions unless "good cause" is shown.  The court concluded that the district court found no good cause to excuse waiver and there was none in this case, rejecting the argument that it was based only on evidence that came to light at trial.  On the firearm conviction, the court found there was sufficient evidence to demonstrate a nexus between the firearm and a drug trafficking offense.

Friday, August 29, 2014

Pre-Jones Warrantless GPS Attachment Doesn't Require Suppression

US v. Stephens: Stephens was the subject of an investigation by a Baltimore area state/local drug task force.  As part of that investigation, officers installed a GPS tracker on Stephens's car.  They did not have a warrant to do so.  Officers then used a combination of the GPS tracker and surveillance to intercept Stephens, who they believed to be armed, at a club when he arrived there.  Stephens was only carrying an empty holster, but a gun was found in his car (after a drug dog alerted).  Stephens was charged with being a felon in possession of a firearm.  Afterwards, the Supreme Court decided Jones, concluding that placing a GPS tracker on someone's car constitutes a search under the Fourth Amendment.  Stephens moved to suppress the gun.  The district court concluded that search was unreasonable under Jones, but declined to suppress the firearm because the officers were acting in good faith.  Stephens entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed, 2-1.  Relying largely on US v. Knotts and its progeny in the lower courts, the court concluded that "a significant body of federal law existed nationally in 2011 to support the view that warrantless attachment of a GPS . . . was not a search within the meaning of the Fourth Amendment."  In addition, the Maryland courts had expressly found that to be the case.  Against that background, the court rejected Stephens's argument that because the Fourth Circuit hadn't specifically OK'd warrantless GPS searches pre-Jones there could be no good faith on the officers' behalf.  Davis, the Supreme Court decision from which Stephens took this "negative implication" did not "alter the general good-faith inquiry," only provide one situation in which good faith was evident.  At any rate, the court concluded that Knotts was controlling at the time of the search and, thus, officers were acting in good faith compliance with it, even though Knotts was "not exactly on point," because "it is the legal principle of Knotts, rather than the precise factual circumstances, that matters."

Judge Thacker dissented, arguing that exclusion was proper where officers "relied on non-binding, non-precedential authority regarding emerging technology -- without first bothering to seek legal guidance -- in order to conduct a warrantless search which spanned . . . nearly two months."  She noted that Davis was all about binding authority and that Justice Sotomayor pointed out, in her concurrence, that "whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled" is a "markedly different question."  That was the case at the time of this search, Judge Thacker argues, noting that Knotts is easily distinguished because the beeper (hardly a modern GPS tracker) in that case had been placed in the suspect cargo with the owner's permission.  As a result, the officers didn't act in an "objectively reasonable" manner suggestive of good faith.

Stash House Robbery Conspiracy Convictions Affirmed, Sentence Vacated

US v. McLaurin: McLaurin sold two guns to a CI and, after the offer of a third sale, was introduced to undercover officers who recruited him to be part of a "stash house robbery."  That is, to rob drug dealers of their product in bulk and then sell it themselves.  McLaurin said he was interested and had committed a "similar" robbery in the past.  He also talked about the need to acquire a gun, since he had sold his.  After a couple of weeks passed, McLaurin contacted the officers and arranged a meeting to discuss the robbery.  He brought along Lowery, his codefendant, to this meeting.  At the meeting, they discussed what weaponry would be needed and how the take from the robbery would be split.  On the appointed day, the defendants and the officers met at a storage area that was to be the staging area for the robbery.  Instead, McLaurin and Lowery were arrested and charged with multiple conspiracy counts.  They were convicted on all counts, with McLaurin also being convicted of two counts of being a felon in possession of a firearm.

On appeal, both defendants challenged their conviction, which McLaurin challenging his sentence as well.  The Fourth Circuit affirmed the convictions, but vacated McLaurin's sentence.  On the convictions, the court first found that the district court had correctly instructed the jury that inducement, in the context of an entrapment defense, "is a term of art necessitating government overreaching," which the defendants argued allowed the jury to rejected their defense based on a "non-factual, value-laden determination" while avoiding "the corse issue of an entrapment defense - predisposition."  Read in conjunction with the rest of the entrapment instructions, the court held that language did no remove predisposition and only "elaborated on the circumstances that can be considered inducement."  The court also affirmed the district court's admission of prior bad act evidence against McLaurin (the earlier robbery) and Lowery (firearm possession).  Finally, the court concluded that the district court's decision to deny McLaurin's motion to sever his felon in possession counts was not error and, if it was, not harmless, as the evidence underlying those charges were admissible under FRE 404(b).  As to McLaurin's sentence, the court found that the district court erred by including two robberies committed as a juvenile in McLaurin's criminal history calculation.  Although limited to plain error review, the court found the error plain, affecting substantial rights, and in need of notice.

Judge Floyd dissented in part, arguing that the district court erred in not granting McLaurin's motion to sever and that the error was not harmless.

Friday, August 15, 2014

Post-Jeopardy Notice of Appeal Don't Give Circuit Court Jurisdiction

US v. Modanlo: Modanlo was charged in ten counts of an 11-count indictment with aiding the 2005 launch of an Iranian communications satellite, via a state-owned Russian consortium.  He was also charged with obstructing bankruptcy proceedings that arose out of that scheme.  Prior to trial, Modanlo moved to dismiss the obstruction count, arguing that the dismissal of the bankruptcy actions constitued collateral estopell and prevented the Government from prosecuting him.  That motion was denied.  Modanlo filed a notice of appeal after his trial had been going on for 12 days (the district court only issued its written opinion six days in, although it had denied it orally pretrial).  The district court denied the Government's motion to label the appeal frivolous, but refused to sever the obstruction count from the rest of the case.  Modanlo filed a notice of appeal from that decision as well.  Modanlo was convicted on all counts  but one and sentenced to 96 months in prison.  He has filed an appeal from the convictions and sentence, although it hasn't reached the briefing stage yet.

The Fourth Circuit dismissed both of Modanlo's appeals, concluding that the notices of appeal he filed didn't confer jurisdiction upon it.  His "premature appeals . . . are a nullity and must be dismissed."  The court noted that jurisidiction cannot be divested from the district court once trial has begun and jeopardy has attached.  Although the issue Modanlo initially sought to appeal could be the subject of an interlocutory appeal that could have stayed proceedings in the district court, that is true only if the notice of appeal had been filed before trial began.  However, since the order denying Modanlo's motion to dismiss was not entered prior to trial, Modanlo's only option was to wait until a final judgment had been entered and seek appeal from there.  To be fair, the Fourth Circuit pointed out that the district court messed up by not entering that order before trial, but given that Modanlo didn't challenge the failure to do so, he was precluded from trying to appeal the order once it was entered.