                               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




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