In U.S. v. Elso, No. 06-14954 (June 19, 2009), the Court held that a district court lacked authority to consider the defendant’s motion under Fed. R. Crim. P. 12(b)(3)(B), challenging the subject matter jurisdiction over one of his counts of conviction.
Fed. R. Crim. P. allows a challenge to a jurisdictional defect in the indictment to be filed "while the case is pending." However, Elso filed his Rule 12 challenge after he lost his appeal of his conviction in the Eleventh Circuit, and after the mandate of that Court had issued. He filed it after the United States Supreme Court denied his petition for a writ of certiorari, but before the Supreme Court denied his petition for rehearing of this denial. The Court held that the case was no longer pending at this time.
First, once the mandate of the Eleventh Circuit issued, the case was no longer pending, because Elso had neither moved to stay the mandate, or seek its recall. Second, under the Supreme Court Rules, the petition for rehearing did not suspend the effect of the denial of the writ of certiorari.
