United States v. Nader Modanlo

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4378
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NADER MODANLO, a/k/a Nader Modanlou, a/k/a Nader Modanlu,
Defendant – Appellant.
No. 13-4414
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NADER MODANLO, a/k/a Nader Modanlou, a/k/a Nader Modanlu,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cr-00295-PJM-1)
Argued: May 13, 2014 Decided: August 7, 2014
Before KING and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Appeals dismissed by published opinion. Judge King wrote the
opinion, in which Judge Thacker and Senior Judge Davis joined.
ARGUED: Samuel Everett Dewey, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Appellant. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: James P. Wyda, Paresh S. Patel, OFFICE OF THE FEDERAL
PUBLIC DEFENDER DISTRICT OF MARYLAND, Greenbelt, Maryland; David
P. Burns, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for
Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, David I. Salem, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
2
KING, Circuit Judge:
We are required to decide whether a criminal defendant can,
by less than extraordinary means, divest the district court of
jurisdiction in the middle of his trial and command that the
ongoing proceedings be suspended. Twenty days after his trial
had begun, before the prosecution had finished presenting its
evidence, Nader Modanlo filed a notice of appeal of the court’s
written order denying his motion to dismiss one of the eleven
charges against him as barred by collateral estoppel. Sixteen
days later, on the eve of jury deliberations, Modanlo filed a
second notice of appeal challenging the court’s denial of his
motion to sever that same charge from the remainder of the
trial. As explained herein, because neither notice was
effective to confer appellate jurisdiction over the merits of
the underlying rulings, we dismiss them both.
I.
A.
Modanlo, a naturalized American citizen, was born in Iran
and educated in the United States. By its operative Third
Superseding Indictment of February 20, 2013 (the “Indictment”),
the grand jury in the District of Maryland accused Modanlo of
facilitating the 2005 launch and subsequent maintenance of an
Iranian communications satellite by a state-owned Russian
3
conglomerate, in violation of the Iran Trade Embargo. According
to the Indictment, the Iranians availed themselves of Modanlo’s
business contacts with the Russians, as a result of which about
$10 million in cash made its way in 2002 from Iran to Modanlo’s
closely held business entity, New York Satellite Industries, LLC
(“NYSI”). The cash hoard was funneled through Prospect Telecom,
a Swiss entity established and funded by the Iranians, with
straw ownership.
The first ten counts of the eleven-count Indictment charged
Modanlo with conspiring to illegally avoid the trade embargo,
with three substantive violations thereof, with money laundering
in connection with the initial transfer of funds from Prospect
Telecom to NYSI, and with five instances of engaging in monetary
transactions in excess of $10,000 with criminally derived
property. The latter five charges stemmed from retransfers of
the laundered funds to numbered accounts at two Russian banks
and, on three occasions, to a domestic account in the name of
Final Analysis Communications Services (“FACS”), a subsidiary of
Final Analysis, Inc. (“FAI”).
Modanlo, with Michael Ahan, had formed FAI in Maryland in
1992. In September 2001, FAI’s creditors placed it in
involuntary Chapter 7 bankruptcy. Ahan later sued Modanlo over
the conduct of their joint business affairs and obtained a
judgment of $109 million, prompting Modanlo to file for personal
4
Chapter 11 reorganization in July 2005. As is typical in a
proceeding under Chapter 11, Modanlo retained possession of the
bankruptcy estate and administered it himself. Meanwhile, as
part of the Chapter 7 liquidation of FAI, NYSI had purchased the
controlling stock in FACS. That stock increased in value after
FACS, embroiled in separate litigation in the district court,
was the beneficiary of a jury verdict in September 2005
amounting to nearly $160 million.
On October 14, 2005, Prospect Telecom brought a replevin
action in Maryland against NYSI, seeking possession of the FACS
stock. Therein, it was alleged that NYSI was in default of its
$10 million “loan,” in consideration of which the FACS stock had
been pledged as collateral. NYSI chose not to appear to defend
the allegations, and Modanlo thereafter signed its stock
certificates over to Prospect Telecom. The stock transfer came
to light a few weeks later, during a hearing on Ahan’s motion in
the bankruptcy proceeding to appoint a trustee for the Chapter
11 estate. 1 That motion was granted, and, upon appointment, the
trustee filed a petition to also place NYSI into Chapter 11
1
See 11 U.S.C. § 1104(a) (authorizing the appointment of a
trustee “for cause, including fraud, dishonesty, incompetence,
or gross mismanagement of the affairs of the debtor,” or where
such appointment is “in the interests of creditors, any equity
security holders, and other interests of the estate”).
5
reorganization; the Modanlo and NYSI bankruptcies were
subsequently consolidated and jointly administered.
As it turned out, the verdict in favor of FACS provided no
boon to either NYSI or Prospect Telecom, as the jury’s award was
reduced post-trial by the district court and then eliminated
entirely on appeal, leaving intact an $8 million judgment
against FACS on a pair of counterclaims. See Final Analysis
Comm’n Servs., Inc. v. Gen. Dynamics Corp., 253 F. App’x 307
(4th Cir. 2007) (unpublished). After the FACS stock proved to
be essentially worthless, Modanlo moved to voluntarily dismiss
the joint proceedings. The bankruptcy court granted the motion
over the objections of the Chapter 11 trustee and the United
States Trustee, both of whom complained that Modanlo’s tactics
had complicated the search for assets and otherwise hindered the
efficient administration of the reorganization process.
Modanlo testified several times in connection with the
bankruptcy proceedings. On certain of those occasions, Modanlo
insisted that he had negotiated an arms-length loan agreement
with Prospect Telecom and denied intimate knowledge of that
company’s formation or operations, denied any awareness of the
identity or nationality of its beneficial owners, and denied
that he had received the $10 million in payment for his
services. Modanlo’s denials under oath served as the basis of
Count Eleven of the Indictment, which charged him with
6
obstructing, influencing, or impeding the bankruptcies (the
“obstruction charge”).
B.
More than eight months prior to the beginning of his
criminal trial, on August 14, 2012, Modanlo moved to dismiss the
obstruction charge as barred by collateral estoppel. 2 Modanlo
updated his motion on November 21, 2012, with additional
materials and argument, to which the government responded in
kind. The gist of the motion was that the dismissal of the
joint bankruptcy proceedings, granted notwithstanding the active
opposition of the United States Trustee, constituted a prior
adjudication of the obstruction charge disfavoring the
prosecution and binding the government’s agents. Modanlo
asserted that he had thereby been rendered immune from being
federally prosecuted for the same conduct, and the United States
Attorney was thus precluded from pursuing Count Eleven.
On January 10, 2013, the district court conducted a hearing
on the dismissal motion. At the conclusion of the hearing, the
court announced from the bench:
2
A “Redlined Superseding Indictment” was then in effect,
and it set forth — in discrete counts denominated Eleven and
Twelve — the conduct constituting what would become the unitary
obstruction charge. The pertinent conduct was re-alleged and
merged into a single Count Eleven in the Second Superseding
Indictment filed October 31, 2012, which was the immediate
predecessor to the operative Indictment.
7
All right. The court is going to deny the motion.
I’m going to file a written opinion. Just go ahead on
the assumption that the motion is denied. I don’t
know how quickly we’ll get the opinion out. This is
an important issue. It’s worth writing about, but
it’s going to take some time. I just wanted to
declare what my holding is. I’ve got that view and
we’ll get something filed in the appropriate time.
J.A. 1105. 3 The case progressed through the pretrial stage, but
no formal ruling was forthcoming. Nothing had changed in that
regard when the jury was sworn and trial began on April 23,
2013. 4 On May 1, 2013, the sixth day of trial, the court at last
issued a written opinion and order denying Modanlo’s motion to
dismiss. See United States v. Modanlo, 493 B.R. 469 (D. Md.
2013). During a break in the trial between days twelve and
thirteen, on May 13, 2013, Modanlo filed a notice of appeal (No.
13-4378) from the court’s denial order.
The procedural basis for the appeal traced to our decision
in United States v. Ruhbayan, in which we agreed that “[t]he
denial of a motion to dismiss an indictment on collateral
estoppel grounds is an appealable final order.” 325 F.3d 197,
201 n.2 (4th Cir. 2003) (alterations and internal quotation
3
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal.
4
At a motions hearing on April 13, 2013, counsel for
Modanlo reminded the district court that it had not yet entered
an order disposing of the motion, but the court evidently
perceived no urgency to formally rule.
8
marks omitted). In confirming that the Ruhbayan order was
amenable to immediate appeal, we relied on the Supreme Court
having arrived at the same conclusion with respect to “order[s]
denying [a] pretrial motion to dismiss [the] indictment on
grounds of double jeopardy.” Id. (citing Abney v. United
States, 431 U.S. 651, 659 (1977)). 5
The government immediately reacted to the notice of appeal
by filing in the district court a motion to certify as frivolous
Modanlo’s assertion of immunity from prosecution based on
collateral estoppel. Pursuant to the “dual jurisdiction”
exception we adopted in United States v. Montgomery, 262 F.3d
233, 240 (4th Cir. 2001), if an Abney-type appeal is certified
as frivolous, the criminal trial may proceed while the defendant
simultaneously seeks review of his immunity claim. Modanlo
agreed that a circumscribed trial could proceed — indeed, his
notice of appeal included a motion to that effect — as to Count
One through Count Ten, which he maintained were readily
severable from Count Eleven.
5
The Court’s Abney decision, in turn, derived from Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), in
which it recognized a “small class” of appealable orders that
“finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to
be denied review and too independent of the cause itself to
require that appellate consideration be deferred until the whole
case is adjudicated.”
9
The maintenance of dual proceedings in accordance with
Montgomery manifests a narrow departure from the general rule
that “an appeal confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of
the case involved in the appeal. A district court does not
regain jurisdiction until the issuance of the mandate by the
clerk of the court of appeals.” 262 F.3d at 239 (internal
quotation marks omitted). As Judge Motz acknowledged, the
divestiture of jurisdiction in the typical case “is a judge made
rule . . . to avoid confusion or waste of time resulting from
having the same issues before two courts at the same time.” Id.
at 239-40 (internal quotation marks omitted).
Just prior to the scheduled resumption of trial, on May 15,
2013, the district court convened a hearing to consider the
parties’ contentions concerning Modanlo’s collateral estoppel
argument, the notice of appeal filed from its denial, and the
conduct of the proceedings going forward. The court overruled
the government’s motion under Montgomery to certify the appeal
as frivolous, though opining that “it borders on the frivolous
quite candidly.” J.A. 1159. Notwithstanding its refusal to
certify, the court informed the parties that trial would resume
as to the entirety of the Indictment, thus denying Modanlo’s
motion to sever Count Eleven. The court entered a conforming
order on May 16, 2013, as to which Modanlo filed another notice
10
of appeal (No. 13-4414) on May 29, 2013. That same day — the
twentieth of the trial — the parties also made their closing
arguments to the jury, which retired the next morning to decide
the case.
The jury deliberated an aggregate of seven days before
returning a verdict. On June 10, 2013, the jury found Modanlo
guilty of all charges except for Count Two, which alleged that
he had violated the Iran Trade Embargo in connection with the
formation and administration of Prospect Telecom. The district
court entered judgment on the verdict on December 30, 2013,
sentencing Modanlo to ninety-six months of imprisonment on his
convictions of Counts Three through Eleven, and imposing a
concurrent term of sixty months on the Count One conspiracy
conviction, in conformance with the statutory maximum for that
offense. On January 13, 2014, Modanlo noticed another appeal
(No. 14-4044) — his third overall — from the final judgment,
but we are called on today to resolve only the two preceding,
midtrial appeals. 6
6
The appeal in No. 14-4044 awaits preparation and filing of
the transcript of trial. No briefing order has yet been
entered, and no request has been made to place that proceeding
in abeyance pending our decision in these appeals.
11
II.
Transcending the merits of the substantive issue that
Modanlo presents for our review, i.e., whether the obstruction
charge against him should have been dismissed as collaterally
estopped from prosecution, is the more insistent procedural
question of the district court’s authority to continue the trial
after the midtrial appeals were taken. Modanlo maintains that
the notices of appeal divested the court of jurisdiction to
adjudicate his case, such that everything that subsequently
occurred there (in particular, his convictions and sentence) was
a legal nullity. According to Modanlo, regardless of what we
decide concerning Count Eleven, the government should be
compelled to retry him on Counts One through Ten.
Modanlo’s imagining of the jurisdictional interplay between
the federal district and appellate courts during the conduct of
a criminal trial gets things exactly backward. Because jeopardy
had already attached with the swearing of the jury, the notices
of appeal thereafter filed during the pendency of the trial were
ineffective to confer appellate jurisdiction. Hence, the
district court correctly permitted the trial to continue and
culminate in a verdict, and it is Modanlo’s premature appeals —
not the judgment against him — that are a nullity and must be
dismissed. We shall endeavor to explain the good reasons why
that must be so.
12
III.
A.
Appellate jurisdiction, in criminal and civil cases alike,
is prescribed by statute and, in its most common form, is
invoked for appeals taken from “final decisions of the district
courts.” 28 U.S.C. § 1291. A “final decision,” generally
speaking, “ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 199 (1988) (citation and
internal quotation marks omitted); see Sell v. United States,
539 U.S. 166, 176 (2003) (noting that “the term ‘final decision’
normally refers to a final judgment, such as a judgment of
guilt, that terminates a criminal proceeding”). Although final
decisions are most frequently manifested in a merits judgment,
they will on occasion be derived from orders collateral to the
merits that satisfy the Cohen criteria. See Mohawk Indus., Inc.
v. Carpenter, 558 U.S. 100, 103 (2009) (citing Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)); see
also supra note 5.
Whether by judgment or collateral order, the entry of a
final decision in a criminal case triggers the time within which
a defendant or the government is required to file the initial
notice of appeal; that time is fourteen or thirty days,
respectively. See Fed. R. App. P. 4(b)(1). For purposes of
13
Rule 4(b), “[a] judgment or order is entered . . . when it is
entered on the criminal docket.” Id. 4(b)(6). If the judgment
is one of conviction, it must set forth the defendant’s sentence
as determined by the district court. See Fed. R. Crim. P.
32(k)(1). A notice of appeal filed after the specified period
has expired may curtail appellate review, if its tardiness is
not waived by the opposing party or otherwise excused. See
United States v. Urutyan, 564 F.3d 679, 684-86 (4th Cir. 2009).
At the other end of the timeline, an appeal of a final
decision in a criminal case is not immediately effective if
taken too early, i.e., attempted after the district court’s
ruling is conveyed but not yet docketed. See Fed. R. App. P.
4(b)(2) (providing that “[a] notice of appeal filed after the
court announces a decision, sentence, or order — but before the
entry of the judgment or order — is treated as filed on the date
of and after the entry”). If the final decision embraces
multiple rulings, the premature notice takes effect upon entry
of the judgment or of the order disposing of the last qualifying
post-verdict motion, whichever occurs later. See id. 4(b)(3). 7
7
A qualifying post-verdict motion is a timely one made
pursuant to the Federal Rules of Criminal Procedure “for
judgment of acquittal under Rule 29,” or “for a new trial under
Rule 33,” or “for arrest of judgment under Rule 34.” Fed. R.
App. P. 4(b)(3)(A).
14
For most purposes, including those relevant to the matter
at bar, a criminal defendant is put in jeopardy and trial begins
“‘when a jury is empaneled and sworn’ or, in a nonjury trial,
‘when the court begins to hear evidence.’” DeLoach v. Lorillard
Tobacco Co., 391 F.3d 551, 562 (4th Cir. 2004) (quoting Serfass
v. United States, 420 U.S. 377, 388 (1975)). The provisions of
Rules 4(b)(2) and 4(b)(3) make clear that once a criminal trial
has begun, all stages are to be completed before an appeal can
be taken of any final decision incorporated within or
accompanying the judgment.
The same holds true of a final decision manifested in a
collateral order. If such an order is not appealed prior to the
commencement of trial, then appeal must wait until the
prescribed time thereafter. If notices of appeal are
nonetheless filed during trial prior to the entry of judgment,
as Modanlo’s were, we have no choice but to dismiss them, as
they are not of a type qualifying for deferred consideration
under Rule 4(b)(3). Such an approach is entirely consistent
with that statutorily prescribed for certain interlocutory
criminal appeals by the government:
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district court
suppressing or excluding evidence or requiring the
return of seized property in a criminal proceeding,
not made after the defendant has been put in jeopardy
and before the verdict or finding on an indictment or
information.
15
18 U.S.C. § 3731 (emphasis added). 8
Were the accepted practice otherwise, we would expect to
discover a host of instances in which a federal appellate court
has acknowledged jurisdiction conferred by a midtrial notice of
appeal. That is hardly the situation. To the contrary, few and
far between are the reported cases in which a criminal defendant
has even attempted to file a non-deferrable notice of appeal
after trial has begun, indicating to us an implicit
understanding that such an appeal is not permitted. The time
and effort expended in resolving most appeals is significant,
and a trial thus interrupted would almost always be brought to a
precipitous and premature end, often in the absence of
reversible error. When the time came to pick up the pieces for
retrial, all of the resources invested in the prior proceeding
by the district court, the jury, and the parties would have been
for naught. Cf. Gov’t of the V.I. v. Blake, 118 F.3d 972, 974
(3d Cir. 1997) (recounting territorial trial court’s view that
8
In United States v. Shears, we clarified that the above-
emphasized clause refers to “a decision or order of a district
court . . . not made,” rather than “[a]n appeal by the United
States . . . not made.” 762 F.2d 397, 400 (4th Cir. 1985). We
therefore gave effect to the government’s appeal noticed after
jeopardy had attached, but in recognition of the unusual
circumstances that a mistrial had been declared soon thereafter
and the appeal was relevant to the proposed retrial, which was
yet to occur.
16
statutory appeal taken after commencement of criminal trial
proceedings necessitated mistrial, rather than adjournment,
because the “appeal would last too long to keep the same jury”). 9
Though not a criminal prosecution, the procedural posture
of Stevens v. Tillman no doubt motivated the court of appeals to
consider similar inherent inefficiencies, causing it to
summarily dismiss as premature the plaintiff’s notice of appeal
filed at the conclusion of her case-in-chief. See 855 F.2d 394,
397 (7th Cir. 1988). Fortunately for the plaintiff, she had
also taken a subsequent appeal from the final judgment, which
permitted the appellate court to address the merits of her
arguments. See id.; accord United States v. Pharis, 298 F.3d
228 (3d Cir. 2002) (en banc) (dismissing government’s § 3731
appeal filed after jury sworn); United States v. Aliotta, 199
F.3d 78 (2d Cir. 1999) (dismissing defendant’s Abney appeal
taken following guilty plea, but prior to sentencing and entry
of judgment).
In attempted counterpoint, Modanlo has urged our attention
to a number of decisions in which proceedings in the district
9
With respect to the enactment whose invocation gave rise
to the mistrial, the Third Circuit related the district court’s
comments that it harbored “serious[] questions” as to “whether a
statute allowing the Government such an appeal during a criminal
trial after jeopardy attached can withstand constitutional
analysis.” Blake, 118 F.3d at 974.
17
court were stayed or later nullified as the result of a notice
of appeal. The referenced authorities, however, stand primarily
for the unremarkable proposition that a trial may not be
conducted from the time that an interlocutory or collateral
order appeal is properly taken until the court of appeals
returns jurisdiction to the district court.
The salient phrase in the preceding sentence is, of course,
“properly taken.” With a lone exception from the D.C. Circuit
that we discuss more fully below, the notice of appeal was filed
prior to trial. See United States v. Brooks, 145 F.3d 446, 457
(1st Cir. 1998) (declaring that the district judge “retain[ed]
no power to swear a jury and begin the trial” upon government’s
pretrial filing of § 3731 appeal); United States v.
Mavrokordatos, 933 F.2d 843, 846 (10th Cir. 1991) (ruling that
§ 3731 appeal filed at 1:51 p.m. divested trial court of
jurisdiction as jury was not sworn until approximately 4:10
p.m.); Stewart v. Donges, 915 F.2d 572, 574-79 (10th Cir. 1990)
(concluding that pretrial appeal of denial of qualified immunity
rendered trial nullity absent certification that appeal was
frivolous).
Perhaps most notably, in Apostol v. Gallion, 870 F.2d 1335(7th Cir. 1989), the same court (acting through the same
authoring judge) that, the year before, had dismissed the
midtrial appeal in Stevens, stayed the onset of two civil rights
18
trials so that it could decide pending appeals taken by the
defendants from orders denying them qualified immunity. In the
absence of a certification of frivolousness by the district
court that would permit it to proceed under the dual
jurisdiction rule, the Seventh Circuit determined that the best
course was for such appeals to “wind up before trials start.”
Apostol, 870 F.2d at 1340.
We have identified potential outliers sprinkled amongst the
glut of supplemental materials filed by the parties leading up
to oral argument and since, but those isolated cases can be
harmonized with the approach we illuminate today. To begin
with, our own decision in Gilliam v. Foster, 61 F.3d 1070 (4th
Cir. 1995) (en banc) is not to the contrary. In Gilliam, we
enjoined an ongoing state criminal trial on the basis of an
Abney double jeopardy claim, but the case arrived on our
doorstep prior to the commencement of trial, after the district
court denied a stay pending resolution of the defendants’
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In any event, because our consideration of the
underlying dispute was triggered by motion under Rule 8 of the
Federal Rules of Appellate Procedure and not by a final-decision
notice of appeal filed in accordance with 28 U.S.C. § 1291,
Gilliam is largely inapposite here.
19
More difficult to reconcile is United States v. Coughlin,
610 F.3d 89 (D.C. Cir. 2010). In that case, the court of
appeals accepted jurisdiction over appeals filed in the midst of
the defendant’s retrial on charges as to which a previous jury
could not reach a verdict. The defendant maintained prior to
retrial that acquittal of other charges brought in the first
proceeding collaterally estopped the government from prosecuting
him again. Ten days after the retrial had begun, however, the
Supreme Court decided Yeager v. United States, 557 U.S. 110(2009), which overruled controlling circuit law and lent
additional substance to the defendant’s collateral estoppel
claim. The district court denied the defendant’s renewed
motion, and he promptly filed two appeals.
Although jurisdiction over the dispute may have technically
vested through the notices of appeal, the court of appeals in
Coughlin appears to have perceived the matter as being more in
the nature of a petition for extraordinary relief. Cf. Ukiah
Adventist Hosp. v. FTC, 981 F.2d 543, 548 n.6 (D.C. Cir. 1992)
(treating notice of appeal, at appellant’s request, as petition
for writ of mandamus). The court even appointed a “special
panel” to evaluate and rule upon the defendant’s request to stay
the retrial pending appeal, acknowledging “the unusual
circumstances presented by Yeager’s mid-trial reversal of
20
Circuit precedent.” Coughlin, 610 F.3d at 96 (internal
quotation marks omitted).
In light of the odd context in which Coughlin arose, we are
reluctant to regard that decision as fully considered contrary
authority. We therefore discern no significant impediment to
our recognition of the rule that notices of appeal filed in a
criminal trial after jeopardy has attached, but before the
jury’s verdict or the district court’s findings has been
delivered, are ineffective and must be dismissed. 10
B.
These midtrial appeals of the district court’s collateral
estoppel ruling should never have been an option. Modanlo’s
motion was made and the hearing thereon occurred long before
trial. Though announcing at the hearing that it intended to
deny the motion, the court was bound to memorialize the ruling
before swearing the jury. The Federal Rules of Criminal
Procedure stipulate in no uncertain terms that “[t]he court must
10
In so ruling, we are constrained to mention United States
v. Kelly, 551 F.2d 760 (8th Cir. 1977). The opinion in that
case fleetingly refers to “midtrial delays resulting partially
from a brief interlocutory appeal” that, the defendants alleged,
harmed their defense. Id. at 767. The Eighth Circuit did not
elaborate, although it seems that whatever appeal may have been
filed was at the government’s instance. Given that Kelly was
decided almost forty years ago, before the age of electronic
dockets, we cannot readily discern the details of the appeal,
and in particular whether the merits thereof were substantively
considered.
21
decide every pretrial motion before trial unless it finds good
cause to defer a ruling. The court must not defer ruling on a
pretrial motion if the deferral will adversely affect a party’s
right to appeal.” Fed. R. Crim. P. 12(d).
The rule requires the district court to enter a definitive
ruling far enough in advance of trial to permit a defendant or
the government to file any appeal of right and, if necessary, to
seek a stay. When trial is sufficiently imminent that it may be
said the court has arbitrarily allowed the appellate window to
effectively close, the proper remedy for a party so aggrieved is
to petition in the court of appeals for mandamus relief. See
United States v. Moussaoui, 333 F.3d 509, 513 n.5 (4th Cir.
2003) (“Mandamus is an appropriate remedy when a district court
arbitrarily refuses to rule on a motion.”); see also Sleeth v.
Dairy Prods. Co. of Uniontown, 228 F.2d 165, 167 (4th Cir. 1955)
(“Mandamus will lie where there is a clear legal right to the
performance of a particular act or duty at the hands of the
respondent.”).
It is obvious, of course, that the “clear legal right” to a
pretrial ruling dissipates and becomes academic after trial has
begun. Left without a basis for extraordinary relief once the
jury was sworn, and without resort to appeal until entry of
judgment, Modanlo will have to wait until his final-judgment
appeal to press his contentions concerning the district court’s
22
collateral estoppel ruling, together with any other issues he
may legitimately raise.
IV.
Pursuant to the foregoing, we direct that Modanlo’s appeals
be dismissed.
No. 13-4378 DISMISSED
No. 13-4414 DISMISSED
23