      Case: 16-51351       Document: 00514235330        Page: 1     Date Filed: 11/13/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                       No. 16-51351
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          November 13, 2017

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
                Plaintiff - Appellee

v.

ADRIAN EDWARDO PENA,

                Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:13-CR-324-1


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        For Adrian Edwardo Pena’s challenge to the denials of his post-judgment
motion to compel disclosure and subsequent motion for clarification, both filed
while his appeal from the judgment was pending, the principal issue at hand
is whether that appeal divested the district court of jurisdiction to consider
those two motions. AFFIRMED.




     * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 16-51351     Document: 00514235330     Page: 2   Date Filed: 11/13/2017



                                  No. 16-51351
                                        I.
      A federal agency in June 2010 inadvertently transferred $733,320 into a
company account controlled by Pena and his wife. Fearing garnishment, Pena
transferred $446,215 of these funds to the IOLTA trust account of his then-
attorney Stanton. Stanton later received a letter and telephone call from
Lewis, an Assistant United States Attorney (AUSA) for the western district of
Texas, detailing the transfer’s suspected illegality, and, accordingly,
requesting Stanton hold the funds.
      The Penas were indicted in February 2013 on four counts of conspiracy
to defraud the Government, in violation of 18 U.S.C. §§ 286, 287, 641, 642, and
1956(h). Pena then discovered Lewis’ United States Attorney’s Office (USAO)
for the western district of Texas was recused from the criminal investigation
and prosecution of an individual involved in the case. As a result, Pena moved
for disclosure of information related to this recusal.
      The court held a hearing in March 2014 on this first motion to compel
disclosure. But, because Pena was involved in ongoing plea negotiations with
the Government, he sought a continuance of the hearing and requested the
court decline to rule on the motion. Therefore, the court left the disclosure
issue pending.
      That August, Pena pleaded guilty to making false, fictitious, or
fraudulent claims to the Government, in violation of 18 U.S.C. § 287.
Additionally, he agreed to waive all rights “to appeal the sentence on any
ground”, except “to the extent [his sentence was] the result of a violation of his
constitutional rights based on claims of ineffective assistance of counsel or
prosecutorial misconduct of constitutional dimension”.         Pena received a
sentence of, inter alia, 26 months’ imprisonment (time served), and was
ordered to pay $804,765.85 in restitution.
                                        2
    Case: 16-51351    Document: 00514235330     Page: 3   Date Filed: 11/13/2017



                                 No. 16-51351
      Despite his appeal wavier, Pena appealed the judgment, including the
restitution order.   And, following filing that appeal, Pena discovered the
recusal of the USAO for the western district of Texas from the enforcement of
the restitution order. Accordingly, he filed a second disclosure motion, even
though his appeal was pending. This instant (second) appeal stems from the
denials of that motion and the motion to clarify.
      Regarding those denials, and the then-pending (first) appeal, the
pertinent dates follow.   The briefing for that appeal was completed on 6
September 2016; Pena’s second motion to compel disclosure was filed on 7
October; the court summarily denied that motion on 7 November; Pena filed
his motion for clarification on 16 November; that motion was summarily denied
on 17 November; Pena filed notices of appeal on 16 and 17 November from the
denials of his two motions; and he filed a motion in this court on 21 November
to stay his first appeal, pending resolution in this second appeal of his post-
judgment disclosure motions.
      In March 2017, our court dismissed Pena’s first appeal, ruling the appeal
waiver valid. United States v. Pena, 683 F. App’x 307, 308 (5th Cir. 2017). In
that opinion, Pena’s motion in our court to stay proceedings for that appeal,
pending resolution of the post-judgment motions to compel, was summarily
denied. Id.
                                      II.
      In challenging the summary denial of his post-judgment (second) motion
to compel, and the subsequent summary denial of his motion for clarification,
Pena claims the denials were an abuse of the district court’s discretion.
Whether the district court lacked jurisdiction to consider those motions must
be first addressed. In denying them, the district court did not provide findings


                                       3
    Case: 16-51351     Document: 00514235330       Page: 4   Date Filed: 11/13/2017



                                  No. 16-51351
of fact or conclusions of law. In any event, no authority need be cited for our
review being de novo for jurisdiction vel non.
      An appeal divests the district court of its jurisdiction “over those aspects
of the case involved in the appeal”. Marrese v. Am. Acad. of Orthopaedic
Surgeons, 470 U.S. 373, 379 (1985) (citing Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982)). Further, an appeal of a judgment determining the
entire action divests the district court of jurisdiction, while that appeal is
pending, over any further matters for that action, “except in aid of the appeal
or to correct clerical errors”. Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d
298, 299 (5th Cir. 1984).
      As discussed supra, after filing his first appeal, Pena discovered the
USAO for the western district of Texas’ recusal from the enforcement of his
restitution order. Accordingly, he filed in district court a second motion to
compel disclosure of “[t]he factual basis in any recusal memorandum submitted
to or issued by the [Executive Office for the United States Attorney’s] Legal
Counsel’s office related to []Pena”, and “[a]ny Brady information not previously
disclosed, including information relating to AUSA Lewis such as whether the
Government ever investigated [his] communication with Stanton and what
information the Government obtained as part of that investigation”.
      As also discussed supra, Pena’s first appeal was pending when that
motion and the motion to clarify were filed in district court, even though that
appeal divested the district court of authority over all matters involved in the
pending appeal. Griggs, 459 U.S. at 58.          To overcome that barrier, Pena
maintains his second motion to compel presented a novel legal question—
whether due-process violations or prosecutorial misconduct were inherent to
the recusals—and was therefore an outside matter, within the jurisdiction of
the district court, notwithstanding his pending appeal.
                                        4
    Case: 16-51351     Document: 00514235330      Page: 5   Date Filed: 11/13/2017



                                  No. 16-51351
      Nonetheless, because Pena appealed the judgment as a whole, the
district court retained only the authority to facilitate the appeal or correct any
clerical issues. Nicol, 743 F.2d at 299. In that regard, Pena’s post-judgment
(second) motion to compel neither facilitated his appeal, nor corrected any
clerical error. It follows that, even if it were determined Pena’s post-judgment
motion to compel did not involve matters on appeal, the district court
nonetheless lacked jurisdiction to consider it.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




                                        5
