[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12875 MAY 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 99-08125-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARLAND HOGAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 17, 2006)
Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Garland Hogan, a pro se federal prisoner, appeals the district court’s denial
of his motion for a new trial, filed pursuant to Fed. R. Crim. P. 33(b), because the
district court concluded that it lacked jurisdiction to entertain the motion while a
direct appeal was pending. We vacate and remand.
Whether a district court is divested of jurisdiction during the pendency of an
appeal is a question of law subject to plenary review. United States v. Tovar-Rico,
61 F.3d 1529, 1532 (11th Cir. 1995). Generally, “the filing of a notice of appeal
divests the district court of jurisdiction over the aspects of the case involved in the
appeal.” Id. The Supreme Court has explained that general rule:
[A] federal district court and a federal court of
appeals should not attempt to assert jurisdiction
over a case simultaneously. 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 Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402
(1982).
Federal Rule of Criminal Procedure 33(b)(1) provides that, when “an appeal
is pending, the court may not grant a motion for a new trial [grounded on newly
discovered evidence] until the appellate court remands the case.” Fed. R. Crim. P.
33(b)(1). Nonetheless, a district court does have jurisdiction to entertain a motion
for a new trial under Fed. R. Crim. P. 33(b). The Supreme Court has instructed
2
that a “District Court ha[s] jurisdiction to entertain [a] motion [for a new trial
under Fed. R. Crim. P. 33] and either deny the motion on its merits, or certify its
intention to grant the motion to the Court of Appeals, which could then entertain a
motion to remand the case.” United States v. Cronic, 466 U.S. 648, 667 n.42, 104
S. Ct. 2039, 2051 n.42, (1984). We have held: “A motion for a new trial may be
presented directly to the district court while the appeal is pending; that court may
not grant the motion but may deny it, or it may advise us that it would be disposed
to grant the motion if the case were remanded.” United States v. Fuentes-Lozano,
580 F.2d 724, 726 (5th Cir. 1978). Therefore, the district court erred when it
determined that it lacked jurisdiction to entertain Hogan’s motion because his
direct appeal was pending.
We note that events have overtaken the case anyway. Since the district court
order we have disposed of Hogan’s direct appeal with an affirmance. The mandate
has issued, returning to the district court jurisdiction over the case. On the remand
from this appeal, therefore, the district court should exercise that jurisdiction by
either granting or denying the motion for a new trial, as the law and facts dictate.
VACATED and REMANDED.
3