Appeal in the Middle of Trial Was Ineffective, 4th Cir. Rules - U.S. Fourth Circuit
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Appeal in the Middle of Trial Was Ineffective, 4th Cir. Rules

The high-powered world of international espionage can lead to laser beams, women who can kill you with their thighs, and henchmen with metal teeth.

Or it can lead you to the Fourth Circuit Court Appeals, arguing over jurisdiction. Albert R. Broccoli presents ... "Dual Proceedings."

From Iran (via Switzerland) With Love

Nader Modanlo was indicted for violating the Iranian trade embargo by helping the Iranians, in concert with a state-owned Russian conglomerate, launch a communications satellite. The Iranians picked Modanlo because of his contacts with Russian business entities. After he helped the Iranians, they wired $10 million through a straw business in Switzerland, with the money eventually ending up in Modanlo's company, New York Satellite Industries.

Modanlo moved to dismiss the 11th count of the indictment, obstruction of justice, citing collateral estoppel and immunity. The district court held a hearing and denied the motion; however, viewing the issue as important enough for a written opinion, the court made a ruling from the bench and said that a written ruling would be forthcoming.

Five months later, and on the sixth day of the trial, it came. Modanlo then appealed to the Fourth Circuit -- in the middle of his trial.

A View to an Appeal

In the Fourth Circuit, a denial of a motion to dismiss is considered an appealable final order. But the court found that "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."

Under the Federal Rules of Criminal Procedure, a criminal trial must be completed before an appellate court can take an appeal. This is true even if the order itself is appealable, like Modanlo's motion to dismiss. Not only does it make statutory sense, but it makes logical sense: interrupting the trial in order to take an appeal is troublesome -- especially if it turns out that there was no 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."

You Only Appeal Twice ... er, Once

Modanlo's supposed appeal was too early, and the Fourth Circuit took some time to chide the district court for not memorializing its ruling on the motion to dismiss until well after the jury was impaneled. Modanlo will have to wait until the entry of final judgment and appeal another day.

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