No. 96-7625 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JOHN FRANK RODGERS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General KRISTINA L. AMENT Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner's notice of appeal from a nonappealable order divested the district court of jurisdiction to impose sentence. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7625 JOHN FRANK RODGERS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A3-A7) is reported at 101 F.3d 247. JURISDICTION The judgment of the court of appeals was entered on November 27, 1996. The petition for a writ of certiorari was filed on January 27, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Following a guilty pleas in the United States District Court for the District of Connecticut, petitioner was convicted on one count of money laundering, in violation of 18 U.S.C. ------------------------------------------- Page Break ---------------------------------------- 2 1956(a) (1) (A) (i) , and one count of conspiracy to commit mail fraud, wire fraud, and money laundering, in violation 18 U.S.C. 371. He was sentenced to 121 months' imprisonment, to be followed by a term of three years' supervised release. The court of appeals affirmed. Pet. App. A3-A7. 1. From March 1988 to December 1990, petitioner, Randy T. Hilgert, and Thomas J. Becker orchestrated a fraudulent sale- lease back scheme involving refurbished photocopiers. The scheme involved the sale of copiers through a brokerage firm owned by Lila, Inc., to various financial institutions. After each sale, the copiers were leased back to Rhino Copy, a commercial copying firm managed by petitioner and also owned by Lila. During the course of the scheme over 600 machines were sold to investors, but no more than 140 copiers were ever actually delivered to Rhino copy. After the scheme was uncovered, Lila declared bankruptcy. United States v. Rodgers, 101 F.3d 247, 249-250 (2nd Cir. 1996). 1 2. On January 10, 1991, petitioner, Hilgert, and Becker, were indicted on charges of mail fraud, wire fraud, money laundering, and conspiracy. Pursuant to a plea agreement, petitioner pleaded guilty to the money laundering and conspiracy charges, and agreed to cooperate with authorities investigating the case. On June 8, 1992, the district court sentenced petitioner to concurrent ___________________(footnotes) 1 We do not cite to the appendix to the petition because it omits the first page of the court of appeals opinion. ---------------------------------------- Page Break ---------------------------------------- 3 sentences of 121 months' and 60 months' imprisonment. 2. Judgment was entered on June 10, 1992. Pet. App. 2. 3. On June 16, 1992, petitioner filed a motion in the district court to reopen the judgment and to reconsider the sentence, on the ground that the government breached the plea agreement. According to petitioner, an FBI agent had encouraged victims of the fraud to write negative letters about petitioner in order to influence petitioner's sentencing. Petitioner also claimed that the FBI agent made improper and inaccurate disclosures about petitioner to the attorney handling the bankruptcy of Lila, Inc., which influence the attorney to participate in petitioner's sentencing hearing. Pet. App. A4. On June 17, 1992, the district court vacated petitioner's sentence and ordered that a hearing be held to review petitioner's allegations. On August 20, following a hearing, the district court denied petitioner's motion, concluding that none of the FBI agent's actions breached the plea agreement. On September 10, 1992, petitioner filed a notice of appeal from the denial of his motion. At that time, the court had not yet resentenced petitioner. Pet. App. A4. On September 16, 1992, the government filed a motion in the district court to reinstate the vacated sentence. On October 28, the district court held a resentencing hearing and reinstated the ___________________(footnotes) 2 Petitioner's base offense level was 35, and his criminal history category was II. This combination yielded a sentencing range of 188-235 months' imprisonment. The district court departed downward from the sentencing range as a result of petitioner's cooperation. Pet. App. A4. ---------------------------------------- Page Break ---------------------------------------- 4 original sentence. On October 29, petitioner's notice of appeal was withdrawn by stipulation. On October 30, the district court entered judgment. Petitioner was granted a 10-day extension of time to appeal the October 30 judgment but did not file a notice of appeal. Pet. App. A4. 4. On November 25, 1992, petitioner filed a second motion to reopen the judgment and to reconsider the sentence, again alleging that the government had breached the plea agreement. On November 28, 1995, the district court denied the motion. Pet. App. A4. 5. On December 6, 1995, petitioner filed a notice of appeal regarding the October 28, 1992, resentencing and the November 28, 1995, denial of the motion to reopen the judgment. Petitioner challenged the jurisdiction of the district court to resentence him because at the time the court took that action petitioner had already filed a notice of appeal, a notice which was subsequently withdrawn by stipulation. Petitioner argued that because the district court was stripped of jurisdiction to resentence him, it lacked jurisdiction to enter judgment on October 30, 1992. Thus, in petitioner's view, the time for filing a direct appeal had not passed, and the appeal should be considered as a direct appeal. On November 27, 1996, the court of appeals held that petitioner's appeal was procedurally barred. In so ruling, the court of appeals held that the district court had jurisdiction to reimpose petitioner's sentence in October 1992. The court reasoned that when petitioner filed his first notice of appeal, on September 10, 1992, the district court had not yet resentenced him, and ---------------------------------------- Page Break ---------------------------------------- 5 petitioner was thus purporting to appeal a non-final order that, under 28 U.S.C. 1291, was not immediately appealable. Noting the general rule that the filing of a notice of appeal divests a district court of jurisdiction, the court concluded that the rule was inapplicable when a party files a notice of appeal of a nonappealable order: "We fail to see any efficiency in allowing a party to halt district court proceedings arbitrarily by filing a plainly unauthorized notice of appeal which confers on this court the power to do nothing but dismiss the appeal." Pet. App. A5-A6. The court of appeals concluded that, because the district court had jurisdiction to resentence petitioner in October 1992, the time for bringing a direct appeal of that ruling had passed ten days after the entry of the October 30, 1992, judgment. Accordingly, the court considered petitioner's appeal to be a collateral attack on the reinstated sentence, brought pursuant to 28 U.S.C. 2255. Under that provision, petitioner had to establish cause and prejudice for his failure to attack that resentencing on direct appeal. Finding that petitioner could show neither cause nor prejudice, the court of appeals held that it could not examine the merits of the appeal. Pet. App. A6. ARGUMENT Petitioner contends (Pet. 3-8) that following his September 10, 1992, notice of appeal, the district court lacked jurisdiction to resentence him. He argues that the circuits are in conflict concerning the effect of a notice of appeal from a non-final ---------------------------------------- Page Break ---------------------------------------- 6 judgment on a trial court's jurisdiction. No such conflict exists, however, and the court of appeals followed the correct approach. This Court has held that "[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 those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). That rule is a "judge made rule originally devised in the context of civil appeals to avoid confusion or waste of time resulting from having the same issues before two courts at the same time." United States v. Salerno, 868 F.2d 524, 540 (2nd Cir.) (quoting United States v. Claiborne, 727 F.2d 842, 850 (9th Cir. 1984)), cert. denied, 493 U.S. 811 (1989). See also United States v. Leppo 634 F.2d 101, 104 (3rd Cir. 1980). Because the divestiture rule was created to promote efficiency, courts do not apply it rigidly and have held that notices of appeal from non-appealable orders do not strip district courts of their jurisdiction. United States v. Ferris, 751 F.2d 436, 440 (lst Cir. 1984); 9 Moore's Federal Practice "par" 203.11, 3-50 (2d ed. 1996) (citing cases). Thus, "[w]here the order in question is manifestly unappealable, the court of appeals never gains jurisdiction of it and, consequently, the district court never loses jurisdiction of it." Ferris, 751 F.2d at 440. The contrary approach, advocated by petitioner, would empower litigants to halt proceedings in the district court at will simply by filing notices of appeal. Ibid. ---------------------------------------- Page Break ---------------------------------------- 7 In this case, the district court's denial of petitioner's motion for resentencing was not a final judgment and was, therefore, not immediately appealable. In criminal cases, a final judgment occurs only after the defendant has been convicted and sentenced. Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989); Flanagan v. United States, 465 U.S. 259, 263 (1984). Before petitioner was sentenced, no final judgment had been entered, and the district court retained its jurisdiction to enter one. The court of appeals correctly so held. The cases upon which petitioner relies do not conflict with the decision here. In Williams v. Bernhardt Bros. Tugboat Service, Inc. , 357 F.2d 883 (7th Cir. 1966), and District 65, Distributive, Processing & Office Workers Union v. McKague, 216 F.2d 153 (3rd Cir. 1954), both of which are civil cases, parties filed notices of appeal from orders dismissing some, but not all, claims. After the notices of appeal were filed, the trial courts certified, pursuant to Fed. R. Civ. P. 54(b), that their judgments were final as to the dismissed claims. Both courts of appeals held that the district courts lacked jurisdiction to make such certification orders after the notices of appeal had been filed. The question whether such Rule 54(b) certifications can be issued after the filing of a notice of appeal presents an entirely different set of issues than does the question whether, in a criminal case, a district court ---------------------------------------- Page Break ---------------------------------------- 8 retains jurisdiction to impose sentence after a defendant files an invalid notice of appeal. 3 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General KRISTINA L. AMENT Attorney MARCH 1997 ___________________(footnotes) 3 Furthermore, the Third Circuit has cast doubt on the continued validity of District 65. See Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275, 277 n.7 (3rd Cir. 1962) (exception to divesting of district court's jurisdiction exists where appeal taken from unappealable order or judgment).