U.S. v. Rodgers

• Decision Date: 27 November 1996
• Docket Number: D,No. 286,286
• Citation: 101 F.3d 247
• Parties: UNITED STATES of America, Appellee, v. John Frank RODGERS, Defendant-Appellant. ocket 96-1053.
• Court: U.S. Court of Appeals — Second Circuit

Page 247

101 F.3d 247

UNITED STATES of America, Appellee, v. John Frank RODGERS, Defendant-Appellant.

No. 286, Docket 96-1053.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1996.

Decided Nov. 27, 1996.

Jeremiah Donovan, Old Saybrook, CT, for Defendant-Appellant.

Peter A. Clark, Assistant United States Attorney, District of Connecticut, New Haven, CT (Christopher F. Droney, United States Attorney, New Haven, CT, on the brief), for Appellee.

Before: WALKER and JACOBS, Circuit Judges and CARMAN, Chief Judge. ^*

WALKER, Circuit Judge:

Defendant John Frank Rodgers claims that the government breached its plea agreement to recommend a downward departure from the guideline range in exchange for Rodgers's assistance in government investigations when (i) an FBI agent encouraged victims of Rodgers's fraud to submit letters to the sentencing court; (ii) the agent misinformed a bankruptcy trustee's attorney, who then informed the sentencing court, of the amount of corporate funds missing due to the fraud and of the results of Rodgers's polygraph examination; and (iii) the government complied with a court order to turn over transcripts of the government's interrogation of Rodgers to plaintiffs in a civil suit. The United States District Court for the District of Connecticut (Ellen Bree Burns, District Judge ), rejected Rodgers's contention that the government's conduct breached the plea agreement. Rodgers now appeals.

Prior to reaching the merits of Rodgers's claims, we must decide whether the instant appeal is a direct appeal from sentencing or a collateral attack. If it is a collateral attack, then Rodgers's claims may be procedurally barred absent a showing of cause and prejudice.

BACKGROUND

Between March 1988 and December 1990, John Frank Rodgers, Randy T. Hilgert, and Thomas J. Becker initiated and participated in a fraudulent sale-leaseback scheme involving refurbished Xerox copiers. As part of the scheme, Becker sold copiers through Becker Associates, a brokerage firm owned by Lila, Inc., to various financial institutions. After each sale, Becker leased the copiers on behalf of the investors back to Rhino Copy, a commercial copying firm managed by Rodgers and also owned by Lila, Inc. Investors forwarded payments for the copiers to Hilgert who purported to be a broker for the machines. Those proceeds, in turn, were transferred to Becker Associates and used to make lease payments to investors and to cover the operating costs of Rhino Copy. Although during the course of the scheme over 600 machines were sold to investors, no more than 140 copiers were ever actually delivered to Rhino Copy. After the scheme was uncovered, Lila, Inc. went into bankruptcy.

On January 10, 1991, a grand jury returned a thirty-five count indictment charging Rodgers, Hilgert, and Becker with five counts of mail fraud in violation of 18 U.S.C. § 1341, five counts of wire fraud in violation of 18 U.S.C. § 1343, twenty-four counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), and one count of conspiracy to commit those offenses in violation of 18 U.S.C. § 371. On November 4, pursuant to a written plea agreement and supplemental cooperation agreement filed under seal, Rodgers entered a guilty plea to Counts 31 (money laundering) and 35 (conspiracy).

On June 8, 1992, the district court sentenced Rodgers to 121 months imprisonment on Count 31 and 60 months on Count 35 to run concurrently; three years supervised release; and $100 special assessments. Rodgers's adjusted offense level under the sentencing guidelines, after a two-point reduction for acceptance of responsibility, was 35 at criminal history category II, providing for an incarceration range of 188-235 months. The district court departed downward to 121 months based on a motion filed by the government pursuant to U.S.S.G. § 5K1.1, in accordance with the plea agreement. The judgment was entered on June 10, 1992.

On June 16, Rodgers moved, pursuant to Fed.R.Crim.P. 35(c), to reopen the judgment and vacate the sentence on the basis that the government breached the plea agreement in two respects. First, he alleged that FBI Agent Marilyn Lucht initiated a negative letter-writing campaign by informing fraud victims of the upcoming sentencing hearing and directing them to fax these letters to the FBI "24-hours a day, 7 days a week." Second, Rodgers alleged that the agent misinformed Edward DiDonato, an attorney for the bankruptcy trustee of Lila, Inc., of the amount of corporate funds missing due to the fraud and revealed the results of Rodgers's polygraph test to DiDonato who, in turn, relayed the information to the district court in a letter prior to sentencing. On June 17, the district court vacated Rodgers's sentence and scheduled a hearing to review Rodgers's allegations. On August 20, following a hearing, the district court held that none of the agent's acts breached the plea agreement and denied Rodgers's motion. Inexplicably, the district court failed to resentence Rodgers at this time. On September 10, Rodgers filed a notice of appeal from the denial of his motion for a new sentence.

On September 16, the government moved in the district court to reinstate the vacated sentence. On October 28, the district court held a full resentencing hearing and reinstated the original sentence. On October 30, the judgment was entered. Although on November 9 Rodgers sought and was granted a 10-day extension on the time within which to appeal, Rodgers did not appeal this judgment. Meanwhile, on October 29, Rodgers's earlier notice of appeal was withdrawn in this court by stipulation.

On November 25, Rodgers filed in the district court a motion to reopen the October 30 judgment. Rodgers argued at length that this motion to reopen judgment was a collateral appeal pursuant to 28 U.S.C. § 2255, rather than a direct appeal from sentencing. In this motion, he alleged that the government had breached the plea agreement by complying with the order of a court in a related civil proceeding compelling it to release transcripts of Rodgers's conversations with government investigators. In addition, he reasserted his challenge to the accuracy of the FBI agent's calculation of the amount of missing funds and claimed that the FBI agent's misapplication of a polygraph test caused him to fail the examination. On November 28, 1995, the district court denied the motion, holding that the plea agreement did not insulate Rodgers against disclosure of his transcripts pursuant to a valid court order. Rodgers then filed this appeal.

DISCUSSION

To determine whether this appeal can be decided on the merits or is procedurally barred, we must first decide whether the present appeal is a direct appeal from the sentence or an appeal from the district court's denial of Rodgers's November 25 motion to vacate the sentence pursuant to 28 U.S.C. § 2255. This, in turn, requires us to decide whether, on October 28, the sentencing court had jurisdiction to resentence Rodgers despite the pendency of an appeal in this court. If so, there was no timely appeal from that sentencing, and this appeal can only be an appeal from the district court's denial of Rodgers's § 2255 motion. If that is the case, then the merits of Rodgers's claims can only be reached upon a showing by Rodgers of cause and prejudice. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); United States v. Pipitone, 67 F.3d 34, 38 (2d Cir.1995).

I. Effect of Notice of Appeal from a Non-appealable Order.

Rodgers claims that the September 10 notice of appeal automatically divested the district court of jurisdiction to resentence until the appeal was dismissed and the mandate issued on October 29. Because in his view the district court lacked jurisdiction on October 28 to resentence him, Rodgers says that we must remand to the district court for resentencing. We disagree and hold that the district court had jurisdiction on October 28 when it resentenced Rodgers. Our analysis turns on the interplay between the statutory limit on appellate jurisdiction and the rule of divestiture of jurisdiction.

With limited exceptions not relevant in this case, the jurisdiction of federal courts of appeals is limited to appeals from final decisions of the district courts. 28 U.S.C. § 1291. Final decisions are those that end the litigation on the merits, leaving nothing for the court to do but execute the judgment. Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). In criminal cases, a decision is not final, and therefore not appealable, "until after conviction and imposition of sentence." Id. (emphasis added). In this case, Rodgers filed a notice of appeal on September 10. At that time, his prior sentence had been vacated and a new sentence had yet to be imposed. Hence, his September 10 notice of appeal was an appeal from a non-final decision of the district court over which this court had no jurisdiction. The question in this case is whether filing a notice of appeal from a district court order that is patently nonappealable divested the district court of jurisdiction to resentence.

As a general matter, "[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, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). A district court does not regain jurisdiction until the issuance of the mandate by the clerk of the court of appeals. United States v. Rivera, 844 F.2d 916, 921 (2d Cir.1988) ("Simply put, jurisdiction follows the mandate.").

The divestiture of jurisdiction rule is, however, not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy, designed "to avoid confusion or waste of time...