United States v. Efraim Diveroli, 729 F.3d 1339

Defendant Efraim Diveroli pled guilty to being a felon in possession of a firearm and was sentenced to 48 months; he timely appealed.
While his direct appeal was pending, Diveroli filed a Rule 12(b)(3)(B) motion in the district court to dismiss the Information for failure to state an offense.
The district court initially concluded it lacked jurisdiction because of the pending appeal, then reversed that view, entertained the Rule 12 motion, and denied it on the merits.
Diveroli appealed the district court's decision to consider and deny the Rule 12(b)(3)(B) motion while the direct appeal was pending.
The Eleventh Circuit sua sponte addressed whether a district court retains jurisdiction to rule on a Rule 12(b)(3)(B) motion after a notice of appeal has been filed but before the mandate issues.
The court concluded the district court lacked jurisdiction to entertain the motion while the direct appeal was pending, vacated the merits ruling, and remanded with instructions to dismiss the motion for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a district court may hear a Rule 12(b)(3)(B) motion after a notice of appeal but before the mandate issues	Rule 12(b)(3)(B) allows a court to hear jurisdictional challenges “at any time while the case is pending,” so the district court could decide the motion despite the pending appeal	A pending direct appeal divests the district court of jurisdiction over matters involved in the appeal; Rule 12(b)(3)(B) does not abrogate the general rule against dual jurisdiction	The district court lacked jurisdiction to decide the Rule 12(b)(3)(B) motion while the direct appeal was pending; vacated and remanded with instructions to dismiss for lack of jurisdiction

Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (establishes that filing a notice of appeal confers jurisdiction on the court of appeals and divests the district court)
United States v. Elso, 571 F.3d 1163 (11th Cir. 2009) (interpreted Rule 12(b)(3)(B) to mean a case is no longer pending for purposes of the rule once the mandate issues)
United States v. Izurieta, 710 F.3d 1176 (11th Cir. 2013) (court of appeals must address charging-document jurisdictional defects until the mandate issues)
United States v. McIntosh, 704 F.3d 894 (11th Cir. 2013) (a defective charging document can undermine a conviction and may be raised on appeal)
United States v. Tovar-Rico, 61 F.3d 1529 (11th Cir. 1995) (describing the general rule against dual jurisdiction after a notice of appeal)
Shewchun v. United States, 797 F.2d 941 (11th Cir. 1986) (district court may only act after appeal in aid of the appeal)
United States v. Davila, 461 F.3d 298 (2d Cir. 2006) (reading Rule 12 to require appellate courts to address jurisdictional challenges once a case is on appeal)
United States v. Seher, 562 F.3d 1344 (11th Cir. 2009) (treating Rule 12(b)(3)(B) as an exception to the waiver rule, not as authorizing district-court action during an appeal)