United States v. Stanislav Pavlenko , 921 F.3d 1286 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15047
________________________
D.C. Docket No. 1:11-cr-20279-RNS-17
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANISLAV PAVLENKO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(April 22, 2019)
Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *
District Judge.
WILLIAM PRYOR, Circuit Judge:
*
Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of
Texas, sitting by designation.
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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
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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,
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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
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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. DISCUSSION
The government argues that we lack jurisdiction to consider the dismissal of
Pavlenko’s indictment for two reasons. First, it argues that the dismissal of the
indictment fails to satisfy statutory jurisdictional requirements, 28 U.S.C. § 1291,
because the dismissal is not a final judgment and does not fall within the collateral-
order doctrine. Second, the government argues that Pavlenko lacks standing to
appeal the dismissal of his indictment because he agreed to it.
We agree that Pavlenko lacks standing. Pavlenko misunderstands the legal
effect of the dismissal order, which did nothing more than grant the government’s
motion to dismiss the indictment. By paraphrasing the terms of the settlement
agreement, the district court did not vary those terms or otherwise subject Pavlenko
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to the continuing supervision of the district court. So Pavlenko has nothing about
which to complain. Because we conclude that Pavlenko lacks standing, we need
not address whether the dismissal order satisfies section 1291.
Article III of the Constitution confines our jurisdiction to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. The “core of Article III’s case-or-
controversy requirement” is standing. Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353
(11th Cir. 2003) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
102–04 (1998)). And a litigant “must establish [his] standing not only to bring
claims, but also to appeal judgments.” Id. To have appellate standing, a litigant
must establish that he has suffered “a concrete and particularized injury that is
fairly traceable to the challenged conduct, and is likely to be redressed by a
favorable judicial decision.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013).
The government contends that Pavlenko lacks standing because he agreed to
the dismissal, but this contention misses the heart of Pavlenko’s argument. True, a
party ordinarily “has no standing to appeal a judgment to which he or she
consented,” but that rule does not apply when the judgment “allegedly deviates
from the terms of the parties’ agreement.” Reynolds v. Roberts, 202 F.3d 1303,
1312 (11th Cir. 2000) (citation and internal quotation marks omitted). Because
Pavlenko alleges that the dismissal order deviated from the terms of the settlement
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agreement, his consent to the settlement agreement does not, by itself, defeat his
standing to appeal the dismissal order.
Pavlenko lacks standing for a simpler reason: the order entered by the
district court did nothing more than dismiss the indictment against Pavlenko, so it
caused him no injury in fact. “Only one injured by the judgment sought to be
reviewed can appeal . . . .” Parr v. United States, 351 U.S. 513, 516 (1956). “In the
context of appellate standing, the primary meaning of the injury requirement is
adverseness,” which necessitates that the challenged order aggrieve the litigant.
United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). In other words, the
appealed order must affect the litigant’s interests in an adverse way. See Wolff, 351
F.3d at 1354; see also Knight v. Alabama, 14 F.3d 1534, 1555–56 (11th Cir. 1994).
It is well established that a criminal defendant ordinarily “has no standing to appeal
the dismissal of an indictment” because he “is not injured by the dismissal.” United
States v. Moller-Butcher, 723 F.2d 189, 190–91 (1st Cir. 1983) (discussing Parr,
351 U.S. at 517); accord United States v. Lanham, 631 F.2d 356, 358 (4th Cir.
1980).
Pavlenko’s argument that the dismissal did not fully close his case as
required by the settlement agreement and instead created a de facto probation of
ten years reflects a misunderstanding of a single statement in the dismissal order.
According to Pavlenko, by stating that the dismissal was “subject to [his]
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continued compliance with the Settlement Agreement for the next 10 years,” the
district court effectively created a ten-year probation term. But as we read the
order, the district court only echoed that the settlement agreement required
Pavlenko to comply with its terms “for a period of no less than ten (10) years.” The
district court did not create a “probation” or retain a supervisory role over the
settlement agreement. Cf. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 380 (1994) (explaining in the civil context that a district court has no inherent
authority to enforce a settlement agreement reached by the parties in exchange for
dismissing a lawsuit). Indeed, the district court’s docket establishes that there are
no pending charges against Pavlenko and that his case was closed on October 25,
2017—the day after the court granted the motion to dismiss his indictment. See
United States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D. Fla. Oct. 25, 2017),
ECF No. 1498.
Pavlenko also argues that the dismissal imposed a condition to which he
never agreed when it stated that he agreed “not to return to the United States,” but
again, the order imposed no such condition. The settlement agreement stated that
Pavlenko “waive[d] any right to return to the United States” for ten years. The
dismissal order then paraphrased the settlement agreement by stating that Pavlenko
had agreed “not to return to the United States” for ten years. This paraphrase
imposed no condition on Pavlenko. In the dismissal order, the district court
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explained why the government had moved to dismiss Pavlenko’s indictment—i.e.,
the settlement agreement—and included a summary of that agreement. But the
district court never purported to impose new conditions on Pavlenko in its order;
the only conditions imposed on Pavlenko are contained in the settlement agreement
to which he agreed. The government even represented in its motion to dismiss the
indictment that it retained the right to reinstate the charges “[s]hould Pavlenko
violate the terms of the Settlement Agreement”—not should he violate the terms of
the dismissal order. In short, the dismissal was just a dismissal.
Because the order did nothing more than dismiss Pavlenko’s indictment, it is
clear that the order did not aggrieve him. As the Supreme Court has explained, a
criminal defendant cannot appeal the dismissal of his indictment because he “has
not been injured by its termination in his favor.” Parr, 351 U.S. at 517. That is, the
dismissal benefited Pavlenko by dismissing the 23 charges against him. So it
caused him no injury. See Amodeo, 916 F.3d at 973; Wolff, 351 F.3d at 1353–54.
And without an injury, Pavlenko lacks standing to appeal the dismissal of his
indictment.
To be sure, Pavlenko and the government have divergent interpretations of
the settlement agreement’s waiver of “any right to return to the United States” for
the ten-year period. Pavlenko interprets this term as waiving only the “right to
return” afforded to him as a permanent resident, who generally have a right, though
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not absolute, to return to the United States from abroad. Pavlenko contends that he
retained “the opportunity to request permission to enter or pass through the United
States,” which the government may grant if it wishes, but that he never agreed not
to return to the United States. The government responds that in Paragraph 1 of the
settlement agreement, Pavlenko relinquished all the rights that accompanied his
resident status when he agreed to “abandon his lawful permanent resident status,”
so that the waiver of his “right to return” in Paragraph 2 cannot be tied to his
resident status. The government interprets the waiver of his “right to return” as
Pavlenko agreeing not to return to the United States in any fashion for the ten-year
period.
Because Pavlenko’s appeal presents no case or controversy, we cannot
resolve these divergent interpretations of the settlement agreement. Perhaps these
interpretations might present a case or controversy if Pavlenko were to return to the
United States or if the government were to obtain a new indictment against him.
See Parr, 351 U.S. at 517 (explaining that a criminal defendant who had his
indictment dismissed would have standing to appeal if he was later reindicted and
convicted). But Pavlenko appealed the dismissal of his indictment, and the
dismissal caused him no injury. There is no case or controversy for us to consider.
IV. CONCLUSION
We DISMISS Pavlenko’s appeal for lack of jurisdiction.
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