Unpublished Disposition, 859 F.2d 154 (9th Cir. 1986)

MEMORANDUM^** 

Robert I. Feldman appeals from the district court's summary denial of four motions: a motion for acquittal; a motion to vacate sentence; and two motions for a new trial. Feldman also moves for bail pending appeal.

On March 21, 1986, Feldman filed a notice of appeal from his conviction on sixteen counts of mail fraud. While this appeal was pending,^d  he filed the four motions collaterally attacking his conviction. The district court summarily denied each motion.

As a general rule, a collateral challenge to a judgment of conviction is improper while the direct appeal from that judgment is still before the court. "A properly filed notice of appeal vests jurisdiction of the matter in the court of appeal [s]; the district court thereafter ha [s] no power to modify its judgment in the case or proceed further except by leave of the appellate court." Sumida v. Yumen, 409 F.2d 654, 656-57 (9th Cir. 1969); Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. denied, 361 U.S. 938 (1960). While not necessarily a jurisdictional bar, United States v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981), this rule minimizes "the risk of duplicitous and conflicting judicial administration." Id.

We have approved departures from this rule only when extraordinary circumstances outweighed "considerations of administrative convenience and judicial economy." Id. No such extraordinary circumstances are present in this case: Feldman has failed to carry the heavy burden of showing that his collateral attack cast "a dark shadow on a pivotal aspect of the direct appeal and, at the same time, implicate [d] the fundamental fairness of the trial and the propriety of the Government's actions." Id. Nor did Feldman's claims "threaten [] the very basis" of the appellate panel's determinations. Id. Furthermore, as Feldman raised issues substantially similar to those he raised on direct appeal, considerations of judicial economy strongly outweigh any competing concerns. We affirm the district court's summary dismissal of Feldman's motions, and deny his motion for bail pending appeal. Our affirmance will not prevent Feldman from moving for collateral relief in the district court following termination of his direct appeal.

AFFIRMED.