USCA11 Case: 21-11083 Date Filed: 05/02/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11083
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEX NAIN SAAB MORAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20450-RNS-1
____________________
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2 Opinion of the Court 21-11083
Before JORDAN, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Alex Nain Saab Moran appeals the district court’s order
denying his motion to vacate an order conferring fugitive status
and for leave to file a special appearance. As relevant to this appeal,
Saab Moran sought to vacate his fugitive status, and to file a special
appearance, to argue that he is immune from prosecution because
he is a foreign diplomat. The district court denied Saab Moran’s
motion because of the fugitive disentitlement doctrine and did not
address whether Saab Moran is immune from prosecution. During
this appeal, however, Saab Moran was extradited to the United
States and appeared before the district court.
Because Saab Moran is no longer a fugitive, the issue of fu-
gitive disentitlement is moot. Saab Moran contends that this Court
should still determine whether he is immune from prosecution.
After careful review, and with the benefit of oral argument, we
conclude that the district court should decide, in the first instance,
whether Saab Moran is a foreign diplomat and immune from pros-
ecution.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 25, 2019, Saab Moran was charged with one count
of conspiracy to commit money laundering and seven counts of
laundering monetary instruments. Saab Moran did not appear be-
fore the district court in response to these criminal charges.
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21-11083 Opinion of the Court 3
Therefore, in August 2019, the district court entered an order
“transfer[ring]” Saab Moran “to fugitive status.”
On June 12, 2020, Saab Moran was arrested in Cape Verde
under an international arrest warrant. Saab Moran was travelling
from Venezuela to Iran. But his flight landed in Cape Verde to re-
fuel. According to Saab Moran, he was travelling to Iran in his ca-
pacity as a special envoy to the Government of Venezuela.
On June 21, 2020, the U.S. government submitted an extra-
dition request. A court in Cape Verde approved the government’s
request, but Saab Moran appealed that order and opposed extradi-
tion.
Saab Moran also moved to vacate the district court’s order
conferring fugitive status. In that motion, Saab Moran sought
leave to make a special appearance to challenge the indictment.
Among other arguments, Saab Moran sought to contest the indict-
ment asserting that, as a special envoy to the Government of Ven-
ezuelan, he is immune from prosecution in the United States.
Saab Moran filed various exhibits in support of his argument, and
he also attached his proposed motion to dismiss as an exhibit.
The district court denied Saab Moran’s motion. In so doing,
the district court found that the fugitive disentitlement doctrine ap-
plied and that the doctrine prevented Saab Moran from challenging
his fugitive status and the indictment. Because the district court
determined that Saab Moran was “precluded from attacking” the
indictment, and denied his motion for a special appearance, the
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4 Opinion of the Court 21-11083
district court did not address the merits of Saab Moran’s argument
that he was immune from prosecution.
Saab Moran appealed the district court’s order. While his
appeal was pending, Saab Moran was extradited to the United
States. Saab Moran has since appeared before the district court,
and he has conceded that “the fugitive disentitlement issue in this
case is moot.”
II. DISCUSSION
The district court denied Saab Moran’s motion to vacate his
fugitive status and to specially appear due to the fugitive disentitle-
ment doctrine, which “permits a district court to ‘sanction or enter
judgment against parties on the basis of their fugitive status.’”1
United States v. Shalhoub,
855 F.3d 1255, 1259 (11th Cir. 2017)
(quoting Magluta v. Samples,
162 F.3d 662, 664 (11th Cir. 1998)).
But Saab Moran is no longer a fugitive. While his appeal was
1 We have jurisdiction to review the district court’s order because the district
court declined to rule on the issue of diplomatic immunity. See Collins v. Sch.
Bd. of Dade Cty., Fla.,
981 F.2d 1203, 1205 (11th Cir. 1993) (holding that the
Court had jurisdiction because “[t]he district court’s order declining to rule on
the qualified immunity issue pending trial effectively denies defendants the
right not to stand trial”); Bouchard Transp. Co. v. Fla. Dep’t of Env’t Prot.,
91
F.3d 1445, 1447–48 (11th Cir. 1996) (“Even though the district court deferred
a ruling on Eleventh Amendment immunity, we have jurisdiction to review
the court’s order . . . Like a public official’s qualified immunity, a state’s Elev-
enth Amendment immunity is ‘an entitlement not to stand trial or face the
other burdens of litigation’” (quoting Mitchell v. Forsyth,
472 U.S. 511, 526
(1985))).
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21-11083 Opinion of the Court 5
pending, Saab Moran was extradited to the United States, and he
has appeared before the district court.
As a result, Saab Moran has conceded that “[t]he fugitive dis-
entitlement doctrine is no longer implicated in this appeal.” Be-
cause we agree with the parties that “the fugitive-disentitlement
issue in this case is moot,” we must dismiss that issue and vacate
the district court’s order addressing it. De La Teja v. United States,
321 F.3d 1357, 1364 (11th Cir. 2003) (“[W]hen an issue in a case
becomes moot on appeal, the court not only must dismiss as to the
mooted issue, but also vacate the portion of the district court's or-
der that addresses it.”).
Here, the district court denied Saab Moran’s motion solely
on fugitive disentitlement grounds, and therefore, the district court
did not address whether Saab Moran is a foreign diplomat and im-
mune from prosecution. Saab Moran argues, however, that this
Court should still decide that issue in the first instance. We decline
the invitation as we are “a court of review, not a court of first
view.” Callahan v. United States Dep’t of Health & Hum. Servs.
through Alex Azar II,
939 F.3d 1251, 1265–66 (11th Cir. 2019). And
“[t]he determination of whether a person is a foreign diplomatic
officer ‘is a mixed question of fact and law.’” Ali v. Dist. Dir., Mia.
Dist., U.S. Citizenship & Immigr. Servs., 743 F. App’x 354, 358
(11th Cir. 2018) (quoting United States v. Al-Hamdi,
356 F.3d 564,
569 (4th Cir. 2004)).
Here the parties did not have the opportunity to fully de-
velop the record, and the district court did not have the
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6 Opinion of the Court 21-11083
opportunity to weigh the evidence, concerning Saab Moran’s claim
that he is immune from prosecution because he is a foreign diplo-
mat. We are therefore “poorly situated to decide [this mixed ques-
tion of fact and law] in the first instance.” Garrett v. Hig-
genbotham,
800 F.2d 1537, 1539 (11th Cir. 1986); see also Jones v.
Governor of Fla.,
950 F.3d 795, 807 n.8 (11th Cir. 2020) (“[S]ince
consideration of the merits of the claim is at a minimum
a mixed question of law and fact, turning in part on undevel-
oped facts . . . it would be inappropriate for us to rule on it in the
first instance.”). Accordingly, we remand the case to the district
court to consider in the first instance whether Saab Moran is a for-
eign diplomat and immune from prosecution.
III. CONCLUSION
For all these reasons, we vacate the district court’s order as
moot and remand the case to the district court. 2
VACATED AND REMANDED.
2As a result of this conclusion, we deny the government’s motion to dismiss
as moot.
