Eleventh Circuit Court of Appeals - Published Opinions
Thursday, September 12, 2013
Diveroli: District Court lacks jurisdiction over motion to dismiss indictment once notice of appeal is filed
In U.S. v. Diveroli, No. 13-10248 (Sept. 10, 2013), the Court held that, although Federal Rule of Criminal Procedure 12(b)(3)(B) provides that a defendant may "at any time while the case is pending" file a motion claiming that the indictment fails to invoke the court's jurisdiction or to state an offense, once a notice of appeal has been filed the district court does not have jurisdiction to entertain such a motion. The Court invoked the general rule against "dual jurisdiction," and noted that allowing a district court to rule on whether an indictment stated an offense while an appeal was pending "would wreak havoc": a successful appeal would render the motion moot, and a successful motion in the district court would moot the appeal -- it might even moot the decision of the appellate court, a result the Court held it was not required to "countenance."