     Case: 08-10516     Document: 00511073695          Page: 1    Date Filed: 04/07/2010




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

                                                  FILED
                                                                             April 7, 2010
                                       No. 08-10516
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DANIEL A. FISHER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:04-CR-172-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Daniel A. Fisher, federal prisoner # 32412-177, appeals, pro se, from the
district court’s orders denying his motions to supplement and to correct and/or
modify the record. He contends that the proposed documents, which were filed
in related proceedings, support one or more of the claims made in his
unsuccessful motion for a new trial and are material to a meaningful review of
the issues in that motion.         Fisher also appeals the denial of his motion to




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10516    Document: 00511073695 Page: 2       Date Filed: 04/07/2010
                                 No. 08-10516

disqualify the office of opposing counsel, request for sanctions, and other
appropriate relief. DISMISSED IN PART; REMANDED in PART.
                                         I.
      In 2004, Fisher was charged with 34 counts of aiding and assisting the
filing of fraudulent tax returns, one count of making a false statement to a bank,
one count of bank fraud, and one count of making a false statement before a
court. He was convicted of all counts.
      The district court sentenced Fisher, inter alia, to 235 months’
imprisonment. Our court affirmed his conviction and sentence. United States
v. Fisher, 236 F. App’x 54, 55 (5th Cir. 2007).
      Subsequently, Fisher moved in district court for a new trial under Federal
Rule of Criminal Procedure 33(a) and (b)(1). In March 2008, that motion was
denied. Fisher then moved for reconsideration of his motion. That April, that
motion was also denied.
      Regarding his appeal from the denial of his new-trial motion, in June
2008, the district court granted Fisher’s motion to proceed on appeal in forma
pauperis. (As discussed infra, that appeal has been decided by our court; the
denial was affirmed. United States v. Fisher, No. 08-10307, 2010 WL 445495
(5th Cir. 3 Feb. 2010).)
      For that appeal, Fisher moved to supplement the record to include
documents and transcripts from a related civil proceeding to enjoin Fisher’s
preparing tax returns. He also moved to correct and/or modify the record,
contending: the complete transcripts from that civil proceeding for both the
hearing at which he was found guilty of contempt and the injunction-compliance
hearing should be included in the record for his appeal from the denial of his
new-trial motion. In April 2008, the district court denied those motions.
      Fisher later moved to disqualify the office of opposing counsel, and in that
motion requested sanctions and “other appropriate relief”. He contended, inter
alia, that the Government had secured an unlawful conviction by fraud and

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                                No. 08-10516

artifice. The district court denied this motion as well, concluding it lacked
jurisdiction because the case was on appeal.
                                       II.
      This appeal is similar to that in No. 08-10923 (dismissed as moot). For the
following reasons, jurisdiction is lacking for each of the two issues on appeal.
                                       A.
      Our court, as stated supra, has affirmed the denial of Fisher’s new-trial
motion. See Fisher, 2010 WL 445495. We are, therefore, unable to grant Fisher
relief for the denial of his motion to supplement and to correct and/or modify the
record in conjunction with that appeal. Consequently, this portion of the appeal
must be dismissed as moot. See Church of Scientology of Cal. v. United States,
506 U.S. 9, 12 (1992) (“It has long been settled that a federal court has no
authority ‘to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter in issue in the
case before it.’” (quoting Mills v. Green, 159 U.S. 651, 653 (1895))). Further, it
is without significance that this appeal was rendered moot by a ruling that
occurred while this appeal was pending. See id. (“[I]f an event occurs while a
case is pending on appeal that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the appeal must be dismissed”.
(quoting Mills, 159 U.S. at 653)).
                                       B.
      Regarding the denial of Fisher’s “Motion to Disqualify the Office of
Opposing Counsel, Request for Sanctions, and Other Appropriate Relief”, he
contends the district court erred in concluding it lacked jurisdiction to address
that motion.   He asserts that the district court always has jurisdiction to
supervise attorneys practicing before it and to rule on a motion for sanctions.
      Although Fisher characterizes his motion as requesting sanctions
against—and the possible disqualification of—government attorneys, the motion
does not have as its primary objective the imposition of sanctions or other

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                                No. 08-10516

remedial punitive measures. See United States v. Early, 27 F.3d 140, 141-42
(5th Cir. 1994) (the nature of a motion must be determined according to its
actual substance rather than title given it). In that regard, the motion contains
numerous contentions attacking the validity of Fisher’s conviction. Fisher seeks
relief for claimed errors that occurred in connection with his trial, and he
requests that the charges against him be dismissed. Because Fisher’s motion
primarily seeks to challenge collaterally the constitutionality of his conviction,
it should be construed, and considered, by the district court as a motion under
28 U.S.C. § 2255. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).
      Consequently, because Fisher’s motion was in the nature of a § 2255
motion, this court lacks jurisdiction over Fisher’s appeal absent a certificate of
appealability (COA) ruling in the district court.         See United States v.
Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997).
      Therefore, this motion is remanded to district court for it to rule on it as
one filed pursuant to § 2255. If the motion is denied, in order to appeal, Fisher
must seek a COA from the district court.
                                       III.
      For the foregoing reasons, the appeal is DISMISSED IN PART and
REMANDED in PART.




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