              Case: 11-14776    Date Filed: 02/05/2013   Page: 1 of 4

                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 11-14776
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 0:04-cr-60206-JIC-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

BERNARD ROEMMELE,
a.k.a. Bernie,

                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (February 5, 2013)

Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.

PER CURIAM:

      Bernard Roemmele, proceeding pro se, appeals the district court’s denial of

his motions to dismiss the indictment that resulted in his conviction of Racketeer
               Case: 11-14776    Date Filed: 02/05/2013    Page: 2 of 4

Influenced and Corrupt Organizations Act (“RICO”) conspiracy, conspiracy to

commit mail fraud and/or wire fraud, conspiracy to commit money laundering, and

securities fraud.

                                          I.

      Roemmele was convicted and sentenced to 144 months imprisonment in

August 2006. He filed a notice of appeal of his conviction and sentence on

February 6, 2007. On September 14, 2010, we issued an opinion affirming his

convictions but vacating his sentences and remanding for further sentencing

proceedings. United States v. Hein, 395 F. App’x 652 (11th Cir. 2010).

Roemmele filed a motion for rehearing en banc, which we denied on July 1, 2011.

The mandate issued on July 11, 2011. On July 21, 2011, however, Roemmele

moved to stay the mandate in order to allow him to remain in Pennsylvania as he

prepared briefs in his petition for writ of certiorari to the Supreme Court and in a

related appeal. We recalled the mandate on July 22, 2011. The mandate re-issued

on April 5, 2012. The Supreme Court denied his petition on November 5, 2012.

      In the meantime—while his first appeal was still pending—Rommele filed

and the district court ruled on two motions to dismiss the indictment that led to his

conviction. In the first motion, filed February 15, 2011, he alleged that the grand

jury returned the indictment after its term had expired. In the second motion, filed

February 16, 2011, he contended that the indictment failed to state an offense. The

                                          2
                Case: 11-14776        Date Filed: 02/05/2013       Page: 3 of 4

district court denied Roemmele’s motions on October 3, 2011. This is Roemmel’s

appeal of that denial.

                                               II.

       The filing of a notice of appeal “confers jurisdiction on the court of appeals

and divests the district court of its control over the aspects of the case involved in

the appeal.” United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995).

When an appeal is filed, “the district court is divested of jurisdiction to take any

action with regard to the matter except in the aid of the appeal.” Shewchun v.

United States, 797 F.2d 941, 942 (11th Cir. 1986). The district court does not

regain jurisdiction until the mandate has issued. Zaklama v. Mount Sinai Med.

Ctr., 906 F.2d 645, 649 (11th Cir. 1990). The rule against dual jurisdiction “serves

two important interests: judicial economy, for it spares the trial court from passing

on questions that may well be rendered moot by the decision of the Court of

Appeals; and considerations of fairness to parties who might otherwise be forced,

as a matter of tactics, to fight a ‘two front war’ for no good reason.” Shewchun,

797 F.2d at 943.

       We have recognized limited exceptions to that general rule, none of which

applies here. 1 The interests of judicial economy and fairness compel us to decline


1
 See United States v. Vicaria, 963 F.2d 1412, 1415 n.2 (11th Cir. 1992) (noting that a district
court retains jurisdiction to deny a frivolous double jeopardy motion, to dismiss an indictment
during the pendency of a government’s appeal of a suppression order, and to rule on any order
                                                3
                 Case: 11-14776        Date Filed: 02/05/2013        Page: 4 of 4

to extend those exceptions to cover Roemmele’s motions to dismiss. If

Roemmele’s pending appeal had been granted and his conviction reversed, his

motion to dismiss would have been rendered moot. And by filing a motion to

dismiss while his appeal was still pending, Roemmele forced the government to

defend its case in both this Court and the district court.

       The mandate from the first appeal of Roemmele’s conviction returned

jurisdiction to the district court on July 11, 2011, but the district court lost that

jurisdiction when we recalled the mandate on July 22, 2011. The district court did

not regain jurisdiction until the mandate issued again on April 5, 2012. It therefore

lacked jurisdiction to rule on Roemmele’s motions to dismiss on October 3, 2011

and should have dismissed the motions for lack of jurisdiction.

       REMANDED with instructions to DISMISS the motions for lack of

jurisdiction.




when the pending appeal involves a nonappealable order); Weaver v. Fla. Power & Light Co.,
172 F.3d 771, 773 (11th Cir. 1999) (holding that the general rule “does not apply to collateral
matters not affecting the questions presented on appeal.”); Fed. R. App. P. (5) (“The filing of a
notice of appeal . . . does not divest a district court of jurisdiction to correct a sentence under
Federal Rule of Criminal Procedure 35(a) [which provides for correcting an arithmetical,
technical, or other clear error].”).
                                                  4
