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United States v. Pavlenko

United States Court of Appeals, Eleventh Circuit

April 22, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
STANISLAV PAVLENKO, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:11-cr-20279-RNS-17

          Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, [*] District Judge

          WILLIAM PRYOR, CIRCUIT JUDGE

         This appeal requires us to decide whether a criminal defendant has standing to appeal the dismissal of his indictment without prejudice. Stanislav Pavlenko stood charged of 23 counts arising from a fraudulent scheme when he negotiated a settlement agreement with the government. Pavlenko, a Russian citizen, agreed to return to Russia and abandon his lawful permanent resident status in the United States. And he waived "any right to return to the United States" for ten years. In exchange, the government agreed to dismiss all charges against him. The day after Pavlenko boarded a flight to Russia, the government moved to dismiss the indictment. The district court granted the motion in the light of the settlement agreement in which Pavlenko had agreed, among other things, "not to return to the United States" for ten years. Pavlenko contends that the dismissal imposed conditions to which he never agreed. But because the order did nothing more than dismiss the indictment against him, Pavlenko lacks standing to complain about it. We dismiss his appeal for lack of jurisdiction.

         I. BACKGROUND

         A grand jury returned a 57-count indictment charging Stanislav Pavlenko, a Russian citizen, and seven others with offenses arising from their operation of a fraudulent scheme in their nightclubs in South Beach. The indictment alleged that the conspirators illegally imported women, called "bar girls," primarily from Latvia and Estonia, to lure intoxicated victims to their clubs where the conspirators would fraudulently charge the victims' credit cards. Pavlenko's 23 charges included numerous counts of wire fraud, conspiracy to commit wire fraud, conspiracy to commit money laundering, and conspiracy to defraud the United States.

         A jury found Pavlenko guilty of ten counts but acquitted him of the remaining 13 counts. The district court sentenced Pavlenko to serve 78 months of imprisonment. Pavlenko appealed, and we vacated his convictions on the ground that the district court abused its discretion when it refused to give a jury instruction the defendants requested. See United States v. Takhalov, 838 F.3d 1168 (11th Cir. 2016).

         After we remanded the case, Pavlenko and the government reached a settlement agreement. Pavlenko agreed to "abandon his lawful permanent resident status and voluntarily return to Russia"; "waive[] any right to return to the United States, as well as any right to re-apply for lawful permanent resident status or any other immigration status . . . for a period of no less than ten (10) years"; and "surrender his Lawful Permanent Resident card." In exchange, the government agreed to "dismiss the remaining charges against [Pavlenko] in this case" when he left for Russia.

         Before dismissing the indictment based on the settlement agreement, the district court conducted a hearing. Pavlenko testified that he had read, understood, and agreed with all the terms in the agreement and that he had consulted with his attorney about it. Pavlenko confirmed that he was agreeing to give up his resident status and his right to reapply for any immigration status for ten years. The court concluded that Pavlenko had knowingly and voluntarily entered into the settlement agreement. The parties then filed the settlement agreement with the district court.

         The day after Pavlenko boarded a plane for Russia, the government filed a motion to dismiss the charges against him without prejudice "in fulfillment of the Settlement Agreement." The government explained that Pavlenko "ha[d] agreed, per the terms of the Settlement Agreement, not to return or seek to obtain any immigration status in the United States, for a period of at least 10 years." And the government explained that, "[s]hould Pavlenko violate the terms of the Settlement Agreement, the United States retains the right to re-instate the charges against him."

         The district court granted the motion and "dismisse[d] the Indictment without prejudice as to Stanislav Pavlenko." The dismissal order explained that, after Pavlenko had surrendered his permanent resident card and returned to Russia, the government had moved for dismissal to fulfill the settlement agreement. The dismissal order also stated that "Pavlenko ha[d] further agreed, per the terms of the Settlement Agreement, not to return to the United States or seek to obtain any immigration status in the United States for ten years." And the order explained that the dismissal "[wa]s subject to Pavlenko's continued compliance with the Settlement Agreement for the next 10 years." The next day, the court closed Pavlenko's case. See United States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D. Fla. Oct. 25, 2017), ECF No. 1498. Pavlenko appealed the dismissal of his indictment on the ground that the district court exceeded its authority by creating a de facto ten-year probation and imposing a condition to which he never agreed.

         II. STANDARD OF REVIEW

         We review de novo questions of our jurisdiction. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).

         III. ...


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