In an opinion by Judge Kearse, the Circuit ruled in United States v. Jacques, No. 20-1762(L) (2d Cir. July 26, 2021), that a district court lacks authority under Rule 36 (of the Federal Rules of Criminal Procedure) to correct a clerical error in the judgment while an appeal is pending in the Circuit from the court’s denial of the defendant’s prior Rule 36 motion. This simply applies the general rule that “the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Op. 14.
Although Rule 36 states that the court “may at any time correct a clerical error in the judgment,” the Circuit reads this as “meant literally in the temporal sense, rather than in a situational sense.” That is, Rule 36 empowers a court to correct a clerical error years after an erroneous judgment was entered. But a court cannot correct such an error when an appeal – especially from a prior denial of a Rule 36 motion – is pending. In that “situation,” the general rule of appellate divestiture governs.
The Circuit acknowledged that dictum in prior cases suggests that a district court may exercise its power under Rule 36 even while an appeal is pending. But those cases, Judge Kearse explained, involved appeals having nothing to do with the error corrected under Rule 36. Where the appeal (pending in the Circuit) and the Rule 36 motion (before the district court) concern the same or similar matter, the appellate-divestiture rule applies and the district court lacks jurisdiction to act.