USA v. Jeffrey Spivack

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11220
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY SPIVACK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80016-KAM-1
____________________
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2 Opinion of the Court 22-11220
Before WILSON, L UCK , and B LACK , Circuit Judges.
PER CURIAM:
Jeffrey Spivack, proceeding
pro se, appeals the district
court’s denial of his motion to dismiss the information, under Fed-
eral Rule of Criminal Procedure 12(b)(2), for violations of Federal
Rule of Criminal Procedure 7(b) and 18 U.S.C. § 3161. He contends
the district court erred when it found it lacked jurisdiction to con-
sider his motion because his case was still pending, even though it
was on direct appeal, and the charging document in his criminal
case was insufficient, such that it did not confer jurisdiction to the
district court. The Government responds by moving for summary
affirmance of the district court’s order, arguing Spivack’s claim un-
der Rule 7(b) lacked merit, and he waived his claim under
§ 3161 when he pleaded guilty.
The Government is entitled to summary affirmance of the
district court’s denial of Spivack’s motion to dismiss the infor-
mation because Spivack’s appeal is frivolous.1
See Groendyke
1 We review
de novo a district court’s determination regarding its jurisdiction.
United States v. McIntosh, 704 F.3d 894, 900 (11th Cir. 2013). We review for
abuse of discretion a district court’s denial of a motion for reconsideration.
Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir. 2007) (civil context).
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22-11220 Opinion of the Court 3
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)2 (explain-
ing summary disposition is appropriate where “the position of one
of the parties is clearly right as a matter of law so that there can be
no substantial question as to the outcome of the case, or where, as
is more frequently the case, the appeal is frivolous”).
The district court did not err when it found it lacked juris-
diction to consider Spivack’s motion to dismiss the information.
Spivack’s criminal judgment was finalized in May 2021, and he filed
a direct appeal. At the time Spivack filed the motion to dismiss on
March 15, 2022, his appeal was pending in this Court. Once Spi-
vack filed his appeal, he conferred jurisdiction to us and divested
the district court of its jurisdiction to take any action in the case,
unless it does so to aid the appeal.
See United States v. Diveroli,
729 F.3d 1339, 1341 (11th Cir. 2013) (stating once an appeal is filed,
jurisdiction is conferred on the court of appeals and the district
court is divested of its jurisdiction over the case). Spivack’s
post-conviction motion to dismiss the information for a lack of ju-
risdiction necessarily implicates the outcome of his direct appeal,
as a charging document that failed to invoke the district court’s ju-
risdiction over his case undermines the validity of his convictions.
See United States v. McIntosh, 704 F.3d 894, 906 (11th Cir. 2013).
Whether Spivack raised the issue of the jurisdictional defect of his
2 In
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 22-11220
information in his direct appeal is inconsequential because we have
stated that we will
sua sponte address the issue if the charging doc-
ument is fatally flawed.
See Diveroli, 729 F.3d at 1341
. The district
court was divested of jurisdiction to rule on a motion to dismiss the
information after Spivack filed his notice of appeal of the judgment.
See id. As such, we will not address the merits of Spivack’s argu-
ments regarding his motion to dismiss the information because this
appeal is frivolous.
See Groendyke Transp., Inc., 406 F.2d at 1162.
Regarding Spivack’s motion for reconsideration, the district
court did not abuse its discretion when it denied the motion be-
cause it lacked jurisdiction to consider the underlying motion to
dismiss in the first place.
See id.
Therefore, we GRANT the government’s motion for sum-
mary affirmance of the district court’s denial of Spivack’s
pro se
motion to dismiss the indictment,3 DENY as moot its motion to
stay the briefing schedule, and DENY Spivack’s construed motion
for summary reversal.
AFFIRMED.
3 Liberally construing Spivack’s response to the Government’s motion for
summary affirmance as a motion for summary reversal, his motion is denied
because his position is not clearly correct as a matter of law.
See Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (explaining
pro se plead-
ings are held to a less stringent standard than counseled pleadings and, there-
fore, are liberally construed);
Groendyke Transp., Inc., 406 F.2d at 1162.
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