             Case: 13-10248      Date Filed: 09/10/2013    Page: 1 of 10


                                                                           [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-10248
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:10-cr-00281-GAP-KRS-1



UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                        versus

EFRAIM DIVEROLI,
                                                            Defendant - Appellant.

                           ________________________

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

                                (September 10, 2013)

Before CARNES, Chief Judge, BARKETT and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

      At issue in this appeal is whether a district court has jurisdiction to entertain

a motion to dismiss the charging document in a criminal case under Federal Rule

of Criminal Procedure 12(b)(3)(B) while the defendant’s direct appeal is pending.
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We hold district courts lack jurisdiction to decide a Rule 12(b)(3)(B) motion under

these circumstances. Therefore, we vacate the district court’s merits decision and

remand with instructions to dismiss for want of jurisdiction.

                                                  I.

          Efraim Diveroli was charged by Information 1 with possessing a firearm as a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty, and the

district court sentenced him to 48 months’ imprisonment. Diveroli filed a timely

notice of appeal on September 12, 2011.2

          After briefing on that appeal had begun, but before we decided it, Diveroli

filed a motion in the district court to dismiss the Information pursuant to Federal

Rule of Criminal Procedure 12(b)(3)(B). At first, the district court dismissed the

motion, concluding that Diveroli’s notice of appeal divested the court of

jurisdiction to decide it. But at Diveroli’s request, the district court reconsidered

its conclusion, determined it had jurisdiction over the motion notwithstanding the

appeal, and denied the motion on the merits. Diveroli appeals that decision.

                                                 II.

          Even if no party raises the issue, we are obligated to address the district

court’s jurisdiction to issue a ruling we are reviewing on appeal. United States v.

1
    Diveroli waived his right to prosecution by indictment.
2
 See United States v. Diveroli, 512 F. App’x 896, 902 (11th Cir. 2013) (affirming Diveroli’s
conviction and sentence).
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Dunham, 240 F.3d 1328, 1329 (11th Cir. 2001). Subject to exceptions not relevant

here, “‘[t]he filing of a notice of appeal is an event of jurisdictional significance —

it 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) (quoting Griggs v. Provident

Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402 (1982)). When an

appeal is filed, “the district court is divested of jurisdiction to take any action with

regard to the matter except in aid of the appeal.” Shewchun v. United States, 797

F.2d 941, 942 (11th Cir. 1986) (internal quotation marks omitted). Of course, the

question of whether a charging document conferred jurisdiction on the district

court to act at all in a criminal case is necessarily an “aspect[] of the case involved

in” a direct appeal from a judgment of conviction. Tovar-Rico, 61 F.3d at 1532;

see United States v. McIntosh, 704 F.3d 894, 901-03, 906 (11th Cir. 2013) (“An

indictment that fails to invoke a court’s jurisdiction or to state an offense . . .

necessarily undermines the validity of a conviction.”). In fact, a defendant may

challenge a fatal defect in the charging document for the first time on appeal, and

we are required to address the issue on our own even if he does not. See United

States v. Pacchioli, 718 F.3d 1294, 1307 (11th Cir. 2013); United States v. Izurieta,

710 F.3d 1176, 1179 (11th Cir. 2013); see also McIntosh, 704 F.3d at 906

(recognizing that a defendant may raise such a claim even after pleading guilty).


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      In this case, Diveroli has asserted that Federal Rule of Criminal Procedure

12 provides an exception to this general rule against dual jurisdiction. Rule 12 lists

certain motions that “must be raised before trial,” among them “a motion alleging a

defect in the indictment or information . . . .” Fed. R. Crim. P. 12(b)(3). That

timing requirement, however, contains an exception: “at any time while the case is

pending, the court may hear a claim that the indictment or information fails to

invoke the court’s jurisdiction or to state an offense . . . .” Id. at 12(b)(3)(B).

Based on this exception, we have held that we must vacate a conviction and

sentence at any time until the mandate issues if the charging document contains a

jurisdictional defect. Izurieta, 710 F.3d at 1179. But we have not previously

addressed in a published opinion whether — because Rule 12 speaks of “motions”

and deals mainly with timing in the trial court — the exception abrogates the

general rule that once a case is on appeal, the district court is divested of

jurisdiction over it. We hold that it does not.

                                           III.

      In this case, the district court reconsidered its original conclusion that it

lacked jurisdiction to consider Diveroli’s Rule 12(b)(3)(B) motion based on our

decision in United States v. Elso, 571 F.3d 1163, 1166 (11th Cir. 2009). In Elso

we said that “Rule 12(b)(3)(B) authorizes the district courts, ‘at any time while the

case is pending,’ to hear a claim that the indictment fails to invoke the court’s


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jurisdiction or to state an offense.” Id. (quoting Fed. R. Crim. P. 12(b)(3)(B)).

And we held that “Elso’s case . . . was no longer pending . . . when the mandate

issued” in his direct appeal. Id. Because the mandate had issued before Elso filed

his motion, “[t]he district court lacked authority to hear” it. Id. The district court

took this language from Elso to mean that it had authority to consider Diveroli’s

Rule 12(b)(3)(B) motion because the mandate had not issued in his direct appeal,

even though that appeal was then pending before us. 3

       But Elso did not mean that Rule 12(b)(3)(B)’s exception clause abrogates

the normal rule that the filing of a notice of appeal divests the district court of

jurisdiction over those parts of the case at issue on appeal. The Elso ruling was

limited to saying, definitively, that a case is “no longer pending” for purposes of

the rule once the mandate in an appeal has issued. Elso did not say that a case

remains pending before the district court even when it is pending on appeal. Id.

As best we can tell, no court has ever held as much. And there are good reasons

why.




3
  The government also appears to interpret Elso this way on appeal, although it challenged
jurisdiction over Diveroli’s motion in the district court. Ordinarily, we would consider the
government to have abandoned the issue. See United States v. Gupta, 572 F.3d 878, 887 (11th
Cir. 2009). However we are obligated to resolve sua sponte questions of jurisdiction, so the
district court’s jurisdiction to have ruled is an issue that may not be abandoned. McIntosh, 704
F.3d at 901 (“Jurisdiction as it is understood today — meaning the courts’ statutory or
constitutional power to adjudicate the case — cannot be waived . . . .” (internal quotation marks
omitted)).
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      First, nothing in the plain text of the rule mandates it. Rule 12(b)(3)(B) just

states that “the court may hear a claim” that the charging document fails to invoke

the district court’s jurisdiction or state an offense “at any time while the case is

pending . . . .” Fed. R. Crim. P. 12(b)(3)(B). We have read that text simply to

support our view that we are obliged to hear such a claim, “provided the mandate

has not issued,” even if it comes up for the first time on appeal. Izurieta, 710 F.3d

at 1179. Other circuits agree that, once the case is on appeal, the Rule simply

confirms that jurisdictional questions must be addressed in the court of appeals

even if they were not raised earlier. See United States v. Davila, 461 F.3d 298,

308 (2d Cir. 2006); United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997)

(discussing the previous version of the Rule). None have held the Rule means a

district court may decide a motion to dismiss the charging document while an

appellate court is reviewing a conviction and sentenced based upon it. Rather than

saying that a motion may be filed in the district court so long as the case is

pending, the better reading of the last clause of Rule 12(b)(3)(B) is merely as an

exception to the waiver rule in the first clause — that is, a failure to put a challenge

to the charging document in a pretrial motion results in waiver unless the challenge

is jurisdictional. See United States v. Seher, 562 F.3d 1344, 1359 (11th Cir. 2009)

(stating that Rule 12(b)(3)(B)’s “at any time while the case is pending” language

simply provides an “exception to th[e] waiver rule” stated in the earlier clause).


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      Second, the very problems that animate the general rule against dual

jurisdiction would arise if a district court were to entertain a Rule 12(b)(3)(B)

motion while the case is on appeal. The general 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 . . . to fight a ‘two front war’ for no good reason.” Shewchun, 797 F.2d at

943. This case is a perfect example of the second consideration, because the

government was simultaneously defending Diveroli’s conviction in both the

district court and this court. It also provides a vivid example of the former. If

district courts retain jurisdiction to review a defendant’s motion to dismiss the

charging document despite a pending appeal, it would wreak havoc in both places.

If the appeal is successful, then the motion would be mooted. If the motion is

successful before the appeal is decided, then the appeal would be mooted. And,

presumably, if the motion is successful after the appeal is decided but before the

mandate issues, then the district court’s decision would nullify the appeals court’s

decision. Nothing in the rule commands that we countenance this result. See, e.g.,

United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527 (1981)

(“[A]bsurd results are to be avoided . . . .”); United States v. Brown, 333 U.S. 18,

27, 68 S. Ct. 376, 381 (1948) (“No rule of construction necessitates our acceptance


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of an interpretation resulting in patently absurd consequences.”). Permitting this

odd deviation would run us squarely into “the confusion and waste of time” that

the rule against dual jurisdiction guards against. Tovar-Rico, 61 F.3d at 1532; see

Griggs, 459 U.S. at 58, 103 S. Ct. at 402 (“[A] federal district court and a federal

court of appeals should not attempt to assert jurisdiction over a case

simultaneously.”).

      Further, interpreting Rule 12(b)(3)(B) to give district courts authority to hear

post-appeal motions to dismiss the indictment or information would short circuit

other rules. For example, Rule 34 requires a defendant to file with the district

court any motion to arrest judgment based on a jurisdictional deficiency in the

indictment or information “within 14 days” after a verdict or guilty plea. Fed. R.

Crim. P. 34. If Diveroli could nonetheless move under Rule 12(b)(3)(B) to dismiss

the Information for the same reason long after his conviction and sentence were on

appeal, then Rule 34’s timing requirement would effectively be meaningless. The

same would be true of Federal Rule of Appellate Procedure 4(b)(3), which keys the

timeliness of an appeal from a judgment of conviction to a timely filed Rule 34

motion. Unless we cannot avoid it, we will not interpret a part of a rule in a way

that renders other provisions superfluous. See United States v. Julian, 633 F.3d

1250, 1255 (11th Cir. 2011) (“It is a cardinal principle of statutory construction

that a statute ought, upon the whole, to be so construed that, if it can be prevented,


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no clause, sentence, or word shall be superfluous, void, or insignificant.” (internal

quotation marks omitted)).

       Finally, refusing to read Rule 12(b)(3)(B) to require dual jurisdiction is

perfectly consonant with the Rules’ own admonition that they should “be

interpreted to provide for the just determination of every criminal proceeding, to

secure simplicity in procedure and fairness in administration, and to eliminate

unjustifiable expense and delay.” Fed. R. Crim. P. 2. Once a case is on direct

appeal, a defendant need not waste his time and money going back to the district

court to challenge the jurisdictional adequacy of the charging document and then

following the result back to us. Rather, he need only alert us to the potential

problem — if we do not find it on our own — at any time before the mandate

issues. Izurieta, 710 F.3d at 1179 (“Until the mandate issues, [this] court is

required, if it has any doubt about the matter, to determine whether the indictment

states an offense.”).4

                                               IV.

       Because Diveroli’s conviction and sentence were already on direct appeal

when he filed his Rule 12(b)(3)(B) motion to dismiss the Information for failure to


4
  The mandate in Diveroli’s direct appeal issued on April 16, 2013. Although we are generally
obligated to examine whether a charging document invokes the district court’s jurisdiction (or
states an offense) regardless of whether that issue was properly presented to the district court,
Diveroli’s case is no longer “pending” for purposes of Rule 12(b)(3)(B). See Izurieta, 710 F.3d
at 1179. We therefore have no occasion to review Diveroli’s contentions on the merits of his
motion to dismiss the Information.
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state an offense, we conclude the district court lacked jurisdiction to entertain it.

Therefore, the court should not have decided the motion. We vacate the district

court’s denial of that motion on the merits, and we remand with instructions to

dismiss the motion for lack of jurisdiction.

      VACATED and REMANDED with instructions to DISMISS the motion

for lack of jurisdiction.




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