from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:11-cr-20279-RNS-17
WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL,
WILLIAM PRYOR, CIRCUIT JUDGE
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.
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
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).
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.
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.
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."
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.
STANDARD OF REVIEW
review de novo questions of our jurisdiction.
United States v. Lopez, 562 F.3d 1309, 1311 (11th