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.

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