USA v. Calderon

• Court: District Court, D. New Hampshire
• Decided: October 3, 1995
• Docket: CR-94-081-M
• Status: Published

Opinion

USA v. Calderon CR-94-081-M 10/03/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 94-81-01-M

Jaime Calderon

O R D E R

Defendant, Jaime Calderon ("Calderon") has appealed his

criminal conviction to the United States Court of Appeals for the

First Circuit. He now brings a motion in this court for

transcripts of grand jury proceedings relating to his indictment.

The United States opposes the motion on grounds that this court

lacks jurisdiction to grant the reguested relief.

I. FACTUAL BACKGROUND

On September 14, 1994, a federal grand jury indicted

Calderon. Count Two of the indictment charged him with

kidnapping and conspiracy to kidnap. On October 26, 1994, the

grand jury handed down a superseding indictment, adding, in Count

Two, that the kidnapping was performed "for ransom, reward, or

otherwise." Calderon was convicted on that Count. On June 21, 1995, Calderon filed a notice of appeal with the

United States Court of Appeals for the First Circuit; the appeal

is still pending. Calderon expects that the grand jury

transcripts he now seeks might substantiate his claim, on appeal,

that the additional language contained in the superseding

indictment constituted a "constructive amendment" to the

indictment that violated rights guaranteed him by the Fifth and

Sixth Amendments to the United States Constitution.

The United States argues that because Calderon's direct

appeal is pending before the First Circuit, this court lacks

jurisdiction to grant the reguested relief. For the reasons

discussed below, Calderon's motion is dismissed without ruling.

II. DISCUSSION

"The 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); see

also United States v. Distasio, 820 F.2d 20, 23 (1st. Cir. 1987);

United States v. Wells, 766 F.2d 12, 19 (1st Cir. 1985); United

States v. Ferris, 751 F.2d 436, 440 (1st Cir. 1984) . This

2 general rule applies to criminal, as well as civil, proceedings.

See Distasio, 820 F.2d at 23; Wells, 766 F.2d at 19; Ferris, 751

F .2d at 440.

The court in United States v. Ledbetter, 882 F.2d 1345 (8th

Cir. 1989), articulated the policy behind this longstanding rule:

The rule serves two important interests. First, it promotes judicial economy for it spares a trial court from considering and ruling on guestions that possibly will be mooted by the decision of the court of appeals. Second, it promotes fairness to the parties who might otherwise have to fight a confusing "two front war" for no good reason, . . . avoiding possible duplication and confusion by allocating control between forums.

Id. at 1347 (citation omitted).

The First Circuit recognizes only two narrowly drawn

exceptions to the rule set forth in Griggs. First, the district

court retains jurisdiction pending direct appeal in the few

instances in which the Federal Rules of Appellate Procedure or

the Federal Rules of Criminal Procedure effectively prescribe it.

For example, the district court retains jurisdiction to correct a

sentence under Fed. R. Crim. P. 35(c). Fed. R. Ap p . P. 4(b).

Similarly, the district court may consider motions for a new

trial based on claims of newly discovered evidence brought under

3 Fed. R. Crim. P. 33. United States v. Graciani, 61 F.3d 70, 77

(1st Cir. 19 95).

Second, "[w]hile an appeal from an order which is either

final or appealable by statute does divest the district court of

authority to proceed with respect to any matters involved in the

appeal, ... an impermissible or frivolous appeal does not have

the same effect on the jurisdiction of the district court."

Ferris, 751 F.2d at 440 (citation omitted). Thus, when an order

is "manifestly unappealable," the court of appeals never gains

jurisdiction over it and the district court never loses

jurisdiction over it. Id.

Calderon's motion for transcripts fits into neither of these

two exceptions. Therefore, the general rule that "filing a

notice of appeal . . . divests the district court of its control"

over the case, Griggs, 459 U.S. at 58, applies to deprive this

court of jurisdiction to rule on Calderon's post-appeal motion.

As a result, no action may be taken, and the docket shall reflect

that the court is without jurisdiction to act.

III. CONCLUSION

4 For the foregoing reasons, this court lacks jurisdiction to

grant the reguested relief. Accordingly, Calderon's motion for

transcripts (document no. 85) is dismissed.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3, 1995

cc: United States Marshal United States Probation United States Attorney Merin R. Chamberlain, Esg.